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Full text of "North Carolina Register v.7 no. 2 (4/15/1992)"

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The 
^ORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



A 



m 



CONa 

TlTUl iic/ir 

TlOWl II tj 



RECEIVED 
APR 22 1992 

LAW LIBRARY 



IN ADDITION 

Final Decision Letter 
NPDES Permits Notices 

PROPOSED RULES 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Transportation 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: APRIL 15, 1992 
Volume 7 • Issue 2 • Pages 106-173 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF. 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 276 11 -7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory' authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC. the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE CODE 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(5750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447. (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
MoUy Masich, 

Director APA Services 



I. IN ADDITION 

Final Decision Letter 106 

NPDES Permits Notices 107 



II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Health: Epidemiology 140 

Radiation Protection 136 

Wildlife Resources 

Commission 133 

Human Resources 

Aging, Division of 121 

Day Care Rules 123 

Facility Services 11 1 

Mental Health, Developmental 

Disabilities and Substance 

Abuse Services 1 1 1 

Insurance 
Consumer Services 

Division 125 

Hearings Division 124 

Seniors' Health Insurance 

Information Program 132 

Transportation 
Motor Vehicles, Division of 142 

III. RRC OBJECTIONS 145 

rV'. RULES rW ALIDATED BY 

JUDICIAL DECISION 148 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



\. CONTESTED CASE 
DECISIONS 

Index to AIJ Decisions 149 

Text of Selected Decisions 158 

VL CUMULATLV E PsDEX 172 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1992 - December 1992) 



Issue 


Last Day 


Last Day 


Earliest 


Earliest 


Last Day 


+ 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


Adoption 


Submit 


Effective 






Filing 


Hearing 


by 
Agency 


to 
RRC 


Date 


+*++++++ 


**++*++++++++++++**+++++*+++++*++++*+*+++++++++++++*****+++ 


01/02/92 


12/09/91 


12/16 91 


01 17,92 


02/01/92 


02/20/92 


04/01/92 


01/15/92 


12/20/91 


12/31,91 


01/30,92 


02/14/92 


02/20/92 


04/01/92 


02/03/92 


01/10/92 


01/17,92 


02/18/92 


03/04/92 


03/20/92 


05/01/92 


02/14/92 


01/24/92 


01/31/92 


02/29/92 


03/15/92 


03/20/92 


05/01/92 


03/02/92 


02/10/92 


02/17/92 


03/17/92 


04/01/92 


04/20/92 


06/01/92 


03 16/92 


02/24/92 


03/02,92 


03 '3 1/92 


04/15/92 


04/20/92 


06/01/92 


04,01/92 


03/11/92 


03/18,92 


04 16/92 


05/01/92 


05/20/92 


07/01/92 


04/15/92 


03/25/92 


04/01 92 


04 30/92 


05/15/92 


05/20/92 


07/01/92 


05/01/92 


04/10/92 


04' 17,92 


05 16/92 


05/31/92 


06,20/92 


08/03/92 


05/15/92 


04/24/92 


05/01,92 


05 30/92 


06/14/92 


06/20/92 


08'03/92 


06/01/92 


05/11/92 


05/18 92 


06/16/92 


07/01,92 


07/20/92 


09/01/92 


06' 15/92 


05/22/92 


06,; 01, 92 


06'30/92 


07/15/92 


07/20/92 


09/01/92 


07/01/92 


06/10/92 


06 17,92 


07 16 92 


07/31/92 


08/20/92 


10/01/92 


07/ 1 5 '92 


06/24/92 


07,01/92 


0730-92 


08/14/92 


08/20/92 


10/01/92 


08/03/92 


07/13/92 


07/20 92 


08 18/92 


09/02/92 


09/20/92 


11/02/92 


08/14/92 


07/24/92 


07/31,92 


08 29/92 


09/13 92 


09/20/92 


11/02/92 


09/01 '92 


08/11/92 


08 18,92 


09 16/92 


10,01 92 


10/20/92 


12/01/92 


09/15/92 


08/25/92 


09 0L92 


09 30/92 


10/15/92 


10/20/92 


12'01/92 


10/01/92 


09/10/92 


09,17 92 


10 16/92 


10/31/92 


11/20/92 


01/04/93 


10/15/92 


09/24/92 


10/0192 


103092 


11/14/92 


11/20/92 


01/04/93 


11/02/92 


10/12/92 


10/19 92 


11 17,92 


12/02/92 


12/20/92 


02/01/93 


11/16/92 


10/23/92 


10/30 92 


12 01/92 


12/16/92 


12/20/92 


02/01/93 


12/01/92 


11/06/92 


11/13 92 


12 16,92 


12/31/92 


01/20/93 


03/01/93 


12/15/92 


11/24/92 


12,01,92 


12/30/92 


01/14,93 


01/20/93 


03/01/93 



* The "Earliest Effective Dale" is computed assuming that the agency follows 
the publication schedule above, that the Rules Review Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5 1 business days before the 1st business 
day of the next calendar month. 



IN ADDITION 



[G.S. 1 20-30. 9H, effecth-e July 16, 1986. requires that ail letters and other documents issued by the 
A ttorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the Xorlh Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:MAP:NT:lrj 

DJ 166-012-3 Voting Section 

92-0356 P.O. Box 66128 

Washington, D.C. 20035-6128 

.March 24, 1992 

Kenneth R. Hoyle, Sr., Esq. 

Lee County Attorney 

P. O. Box 1968 

Sanford, North Carolina 27331-1968 

Dear Mr. Hoyle: 

This refers to the realignment of voting precincts, the establishment of an additional precinct and 
polling place in Lee County, North Carolina, submitted to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on 
January 28, 1992. 

The Attomey General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attomey General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attomey General 

Civil Rights Division 



By: 



Gerald W. Jones 
Chief, Votina Section 



7:2 NORTH CAROLINA REGISTER April 15, 1992 106 



IN ADDITION 



1 his Seciion contains public notices that are required to be published in the Register or haxe been 
approved by the Codifier of Rules for publication. 



STATE OK NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OKI ICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSLE STATE GENERAL NPDES PERMITS 

Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) 
General Permits for Point Source Discharges associated with the following activities: 

1. NPDES General Permit No. NCG500000 for the point source discharge of non-contact cooling 
waters, cooling tower blowdown water, cooling system condensate, boiler water blowdown water, 
and other similar discharges. 

2. NPDES General Permit No. NCG510000 for the point source discharge of treated groundwaters 
associated with the remediation of petroleum contammated groundwaters and other similar dis- 
charges. 

3. NPDES General Permit No. NCG520000 for the point source discharge of wastewater associated 
with sand dredging operations and other similar discharges. 

4. NPDES General Permit No. NCG530000 for the point source discharge of wastewaters associated 
with the rinsing and packing of seafood and fresh water fish; and discharges from fish farms and 
other similar discharges. 

5. NPDES General Permit No. NCG5400()rj for the point source discharge of domestic wastewater 
associated with smgle family residences and other similar discharges. 

6. NPDES General Permit No. NCG550000 for the point sources discharge of wastewaters associated 
with the treatment of surface and groundwaters for either human consumption, industrial process 
or agricultural needs and other similar discharges. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General 
Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North 
Carolina Environmental Management Commission proposes to issue State NPDES General Permits 
for the discharges as described above. 

INEOR.M.ATION: Copies of the draft NPDES General Pemiits and Fact Sheets concerning the draft 
Permits are a\ailable by writing or caUing: 

Mr. Donald Safrit, P,E.. Supervisor 

Permits and Engineermg L nit 

Water Quality Section 

N.C. Division of En\ ironmcntal Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (^19) 733-5083 

Persons wishing to comment upon or object to the proposed detenninations are in\'ited to submit their 
comments in writing to the above address no later than May 31, 1992. .-Vll comments rccei\'ed prior 



107 7:2 NORTH CAROLINA REGISTER April 15, 1992 



IN ADDITION 



to that date will be considered in the final determination regarding permit issuance. A pubhc meeting 
may be held where the Director of the Division of Environmental Management fmds a significant de- 
gree of pubhc interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Environmental 
Management, 512 N. Salisbury Street, Room 925-A, Archdale Building, Raleigh, North Carolina. 
They may be inspected during normal office hours. Copies of the information on fde are available 
upon request and payment of the costs of reproduction. AH such comments and requests regarding 
these matters should make reference to the draft Permit Numbers: 



NCG500000 
NCG5 10000 
NCG520000 
NCG530000 
NCG540000 
NCG550000 



Cooling Water Systems 

Groundwater Remediation Systems 

Sand Dredging Operations 

Seafood Packing and Rinsing Operations 

Single Family Residences 

Water Treatment Systems 



Date: March 23, 1992 



George T. Everett, Director 

Division of Environmental Management 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



108 



IN ADDITION 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PLBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMITS 

Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) 
General Permits for Point Source Discharges of Stormwater associated with the following activities: 

1. NPDES General Permit No. NCG080000 for the point source discharges of stormwater runoff from 
vehicle maintenance areas, including vehicle rehabilitation, mechanical repairs, painting, fueling, lubri- 
cation and equipment cleaning operations areas, associated with industrial activities classified as Local 
and Suburban Iransit and Interurban Highway Passenger Transportation (Standard Industrial Classi- 
fication Code (SIC 41)), Motor Freight Transportation and Warehousing (SIC 42) (except Pubhc 
Warehousing and Storage (SIC 4221-4225)), Postal Service (SIC 43), and Petroleum Bulk Stations and 
Terminals (SIC 5191) with total petroleum site storage capacity of less than 1 miUion gallons, except 
as specified below. ,AJso included in this permit are stormwater discharges from oU water separators 
associated with petroleum storage facilities with less than 1 million gallons total petroleum site storage 
capacity and associated with vehicle maintenance operations at activities which are otherwise designated 
on a case-by-case basis as being required to be permitted, except as excluded below. 

Exclusions from Coveraae: 



a. Vehicle maintenance areas associated with industrial activities classified as Railroad Transportation 
(SIC 40), Water Transportation (SIC 44), and Transportation by .Air (SIC 45), and stormwater 
discharges from oil water separators associated with Petroleum Bulk Stations and Terminals (SIC 
5191) with a total petroleum site storage capacity of greater than or equal to I million gallons. 

b. Discharges of wash water from steam cleaning operations or other equipment cleaning operations. 

2. NPDES General Permit No. NCG130000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as estabUshments primarily engaged in the wholesale trade 
of non-metal waste and scrap (hereafter referred to as the non-metal waste recycUng industry) a portion 
of SIC 5093. This General Permit is appbcable to stormwater discharges from areas at the facilities 
described above which are directly related to the industrial activities. .\lso included in this General 
Permit are stormwater discharges from areas at the facilities described above which are used for vehicle 
maintenance activities. The following activities shall not have coverage under this General Permit: 
estabhshment primarily engaged m the wholesale trade of metal waste and scrap, iron and steel scrap, 
and nonferrous metal scrap, and establishment primarily engaged in automobile wrecking for scrap. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General 
Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North 
Carolina Environmental Management Commission projxjses to issue State NPDES General Permits 
for the discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the draft 
Permits are available by writing or calling: 

Ms. Coleen Sullins, Supervisor 

Stormwater Group 

Water Quahty Planning 

N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North CaroUna 27626-0535 

Telephone (919) 733-5083 



109 7:2 NORTH CAROLINA REGISTER April 15, 1992 



IN ADDITION 



Persons wishing to comment upon or object to the proposed determinations are invited to submit their 
comments in writing to the above address no later than May 15, 1992. All comments received prior 
to that date will be considered in the final determination regarding permit issuance. A pubhc meeting 
may be held where the Director of the Division of Environmental iVIanagement fmds a significant de- 
gree of public interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Environmental 
Management, 512 N. Salisbury Street, Room 625-C, Archdale Building, Raleigh, North Carolina. 
They may be inspected during normal office hours. Copies of the information on file are available 
upon request and payment of the costs of reproduction. All such comments and requests regarding 
these matters should make reference to the draft Permit Numbers NCG080000, or NCG 130000. 



Date: March 25, 1992 



George T. Everett, Director 

Division of Environmental Management 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



110 



PROPOSED RULES 



TITLE 10 DEPARTMENT OF HUMAN 
RESOURCES 

1\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Medical Care Commission 
(Division of Facility Sen'icesI intends to amend 
rules cited as 10 SCAC 3H .0W5 and .0709. 

1 he proposed effective date of this action is Au- 
gust I, 1992. 

1 he public hearing will be conducted at 9:30 
a.m. on June 12, 1992 at the Council Building, 
Room 201, 701 Barbour Drive, Raleigh, i\C 
27603. 

JXeason for Proposed Action: To bring time in- 
terval of physician s visits in line with federal reg- 
ulations and make those visits the same inten-al 
as the renewal of orders. 



Co 



omment Procedures: Written comments 
should be submitted to Jackie Sheppard, 701 
Barbour Drive, Raleigh, \orth Carolina 27603 by 
June 11. 1992. Oral comments may be given at 
the hearing. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3H - RLEES FOR THE 
LICENSING OF NURSING HOMES 

SECTION .0700 - PHYSICIAN SERVICES 

.0705 POLICIES AND PROCEDURES 

(a) Each licensed facility shall have p>olicies and 
procedures which are Implemented to assure that 
the medical or health care of each patient or res- 
ident is under the contmuing supervision of a 
physician. Physician services shall include at 
least those physician services required in Section 
.0300 of this Subchapter. 

(b) Medical orders for all medications and 
treatments administered to any patient or resi- 
dent shall be signed and dated by the attending 
physician. .VU mjdical current orders shall be 
ro' i iuv . od reneued. signed and dated by the phy- 
sician at least e\cr\' Ml davs. quartorly. AH- 
modical ordoro fof controUL ' d C i ub ' j . tanco ' j ohoU h« 
rL" i iowod at- Wst- monthly with the phyoician. 
Such roi i iov . ' msv W doni.' l*y tijk ' phono. AH fe- 
^ l iL^w i a L . hi-dl t=>^ di'L-umL ' ntod »h4 dcitod m Ae 
mL ' dical njcord. 

(c) A physician's oral orders (including tele- 
phone orders) shall be given only to a licensed 
nurse except orders for therapeutic diets which 



shall be given either to a qualified dietitian or h- 
censed nurse. The record of each telephone or- 
der shall include the name of physician giving the 
order, date and time of order, content of order 
and name of person receiving the order. The 
physician who gives oral orders shall sign the or- 
ders within five days and/or in accordance with 
the facility's written pohcies. 

(d) Standing orders shall be identified for each 
patient and signed by the physician. 

(e) All discharge orders and instructions shall 
be signed by a physician. 

Statutory .Authority G.S. 13IE-104. 

.0709 DOCU\1ENT.\TION 

Phyjiiciano ohall maintain appropiiato clinical 

©f this Subchaptor, including documontation e4^ 
a physician ¥i4t- te the pationt by progrooo notos 
' . ' i ritton at- least- e' le ry 90 days aft4 a discharge 
summary which includoo the patient's ©f Fesj- 
dont s prognosis, fmal diagnosis &f causo ef 
death. 

(a) The physician's shall visit everv' 60 days in 
the nursing facility. 

(b) E\eA' physician's visit shall be documented 
with an entr\' in the physician's notes which is 
descriptive of the resident's condition and re- 
sponse to treatment. 

(c) Ph\sicians shall complete discharge sum- 
manes as required bv Rule .1)609 of this Sub- 
chapter. 

.Authority G.S. I31E-104; 42 l.S.C. 1396 r (a). 
****************** 



is otice is hereby gi\'en in accordance with G.S. 
150B-2I.2 that the Commission for Mental 
Health. Developmental Disabilities and Substance 
Abuse Services intends to amend rules cited as 10 
XCAC 14K .0103, .0210. .0315 and 14M .0410. 

I he proposed effective date of this action is Au- 
gust I, 1992. 

1 he public hearing will be conducted at 1:00 
p.m. on .May 28, 1992 at the Sheraton Inn 
Raleigh. President's Room, 4501 Creedmoor 
Road at Crabtree Valley .Mall, Raleigh, .\'C. 

IXeasons for Proposed Actions: All rules in 14K 
are core licensure rules that apply to mental 
health, developmental disabilities and substance 
abuse services. 



Ill 



7:2 NORTH CAROLINA REGISTER .4pnl 15, 1992 



PROPOSED RULES 



10 NCAC I4K .0103 - DEFINITIONS. Definition 
No. (34) "Early Inlen-ention Sen-ices" is pro- 
posed for amendment to add more specificity to 
the definition regarding transportation for 
infant /toddler early intervention services. 
In 1986 the Dhision adopted by reference the 
federal definition for this sen-ice. It is felt to be 
somewhat vague and open ended. With the addi- 
tion of transportation senices to the listing of re- 
quired early intervention services, effective Sj 1 192, 
a deCinition more relevant to Stale needs and 
available resources is appropriate. The proposed 
revision meets the federal requirements and will 
allow for more accurate fiscal planning at the 
State and local levels. 

Other proposed changes in this Rule are for con- 
sistency and new requirements for A PA filing. 
10 NCAC 14K .0210 - LICENSE RENEWAL. Pro- 
posed amendment due to absence of statutory au- 
thority to require sanitation inspections except in 
facilities which provide room or board. Subse- 
quentfy, area programs will not be subjected to 
such inspections and local sanitarians will not be 
called to provide such. 

10 NCAC 14K .0315 - TREATMENT/ HABILI- 
TATION PLANNING AND DOCUMENTATION. 
Proposed for amendment for the inclusion of lan- 
guage which documents that the client participated 
in the development of the individual 
treatment I habilitation plan. This language was 
inadvertently deleted in a previous revision to the 
Rule. 

This rule applies only to group homes for children 
with mental retardation or other developmental 
disabilities. 

10 NCAC 14M .0410 - PARTICIPATION OF THE 
FAMILY OR LEGALLY RESPONSIBLE PERSON. 
Proposed for amendment to allow reports to the 
parent or legally responsible person to be in writ- 
ing or take the form of a conference. The reports 
shall focus on the child's progress toward meeting 
individual goals. This revision will also make the 
rule consistent with specialized community resi- 
dential centers for individuals with mental retar- 
dation or other developmental disabilities. 

\^ omment Procedures: Any interested person 
may present his comments by oral presentation or 
by submitting a written statement. Persons wish- 
ing to make oral presentations should contact 
Charlotte Tucker. Di\-ision of Mental Health, De- 
velopmental Disabilities and Substance Abuse 
Services. 325 North Salisbury Street. Raleigh, 
N.C. 27603, (919 J 733-4774 before May 16. 1992. 
Comments submitted as a written statement must 
be sent to the above address by May 16 and must 
state the rules to which the comments are ad- 



dressed. Time limits for oral remarks may be 
imposed by the Commission Chairman, Fiscal in- 
formation on these rules is also available from the 
same address. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14K - CORE LICENSURE RULES 

FOR MENTAL HEALTH: MENTAL 

RETARDATION AND OTHER 

DE\ ELOPMENTAL DISABILITIES: AND 

SUBSTANCE ABUSE FACILITIES 

SECTION .0100 - GENERAL INFORMATION 

.0103 DEFINITIONS 

(a) This Rule contains the definitions that ap- 
ply to all the rules in this Subchapter and Sub- 
chapters 14L through 140 of this Chapter. 

(b) In addition to the definitions contained in 
this Rule, the terms defined in G.S. 122C-3 also 
apply to all the rules in this Subchapter and 
Subchapters 14L through 140 of this Chapter. 

(c) The following terms shall have the 
meanings specified: 

(1) "Administering medication" means direct 
apphcation of a drug to the body of a cli- 
ent by injection, inhalation, ingestion, or 
any other means. 

(2) "Adolescent" means a minor from 13 
through 17 years of age. 

(3) "Adult" means a person 18 years of age 
or older or a person under 1 8 years of age 
who has been married or who has been 
emancipated by a court of competent ju- 
risdiction or is a member of the armed 
forces. 

(4) "Aftercare" means those services provided 
to substance abuse cUents after discharge 
from a service which facihtates the chent's 
integration or reintegration into society. 
Activities may include self-help groups, 
supportive work programs and staff 
follow-up contacts and Lnter\entions. 

(5) "Alcohol abuse" means psychoactive 
substance abuse which is a residual cate- 
gor>' for noting maladaptive patterns of 
psychoactive substance use that have 
never met the critena for dependence for 
that particular class of substance (criteria 
delineated in DSM-III-R pubhshed by the 
American Psychiatric Association, 1400 
K Street, N.W., Washington, D.C. 20005 
at a cost of twenty-nine dollars and 
ninety-five cents ($29.95) for the soft 
co\er edition and tliirtN-ninc dollars and 
ninety-five cents ($39.95) for the hard 
co\er edition.) This adoption by refer- 
ence » ift accordancQ w'ith GtSt 



7:2 NORTH CAROLINA REGISTER Apiil 15, 1992 



112 



PROPOSED RULES 



150n M(o). includes subsequent amend- 
ments and editions of the referenced ma- 
tenai. 



(6) ■"/VIcohol dependence" means 
psychoactive substance dependence which 
is a cluster of cognitive behavioral, and 
physiologic symptoms that indicate that a 
person has impaired control of 
psychoactive substance use and continues 
use of the substance despite adverse con- 
sequences (cnteria delineated in 
DSM-III-R published by the American 
Psychiatric Association, 1400 K Street, 
N.'W., Washington, D.C. 20005 at a cost 
of twenty-nine dollars and ninety-five 
cents ($29.95) for the soft cover edition 
and thirty-nine dollars and ninety-fi\'e 
cents ($39.95) for the hard cover edition.) 
This adoption by reference k m accord 
ancij with G.S. IJOB l ' l(c). includes sub- 
sequent amendments and editions of the 
referenced matenal. 

(7) ".AppLicant" means any person who in- 
tends to establish, maintain or operate a 
licensable facility and who applies to the 
Department for a license to 0f>erate a fa- 
cility under the provisions of G.S. 122C, 
Article 2. 

(8) ■■Appro\'ed supported employment con- 
version plan" means a planned approach 
to changing the type of services deLi\ered 
from ADAP facility-based to supported 
employment. Approval of the conversion 
plan is the responsibility of the Regional 
Director of the Division and the /Vrea Di- 
rector or his designee if the facility is op- 
erated by a contract agency of the area 
program or other service provider. The 
Di\ision shall request appropriate per- 
sonnel from the Division of Vocational 
Rehabilitation to participate in the review 
process. The request for approval of the 
supported employment conversion plan 
shall include specific wntten information 
in the foUowing areas: 

(A) number of clients to be moved into 
supported employment placements; 

(B) types of supported employment models 
to be used: 

(C) timeframe for the conversion period; 

(D) interim proposed facility stalTmg pat- 
terns and responsibilities: and 

(E) proposed budget for conversion plan. 

(9) ''Area program" means a legally consti- 
tuted public agency pro\iding mental 
health, mental retardation and substance 
abuse services for a catchment area desig- 
nated by the Commission. For purposes 



of these Rules, the term "area program" 
means the same as "area authority" as 
defmed in G.S. 122C-3. 

( 10) "Assessment" means a procedure for de- 
termining the nature and extent of the 
problem for which the individual is seek- 
ing service. 

(11) "Atypical development" in children 
means those from birth to 60 months of 
age who demonstrate significantly atypical 
behavioral socioemotional, motor, or 
sensory development as manifested by: 

(A) Diagnosed hyperactivity, attention def- 
icit disorder or other behavioral disorders, 
or 

(B) Identified emotional or beha\ioral dis- 
orders such as: 

(i) delay or abnormality in achieving ex- 
pected emotional milestones, such as 
pleasurable interest In adults and peers; 
ability to communicate emotional 
needs; and ability to tolerate frus- 
trations. 

(ii) persistent failure to initiate or respond 
to most social interactions. 

(iii) fearfulness or other distress that does 
not respond to comforting by 
caregivers. 

(iv) indiscriminate sociability, e.g. exces- 
sive familiarity with relative strangers. 

(v) self-injurious or unusually aggressive 
behavior, or 

(C) Substantiated physical abuse, sexual 
abuse, or other environmental situations 
that raise significant concern regarding the 
child's emotional well-being. 

(12) "Certified counselor" means an 
alcoholism, drug abuse or substance abuse 
counselor who is certified by the North 
Carohna Substance Abuse Professional 
Certification Board. 

(13) "Child" means a minor from birth 
through 12 years of age. 

(14) "Chronically mentally ill adult" means 
an individual 18 years of age or older who, 
as a result of a mental disorder, exhibits 
emotional or beha\ioral functioning 
which is so impaired as to interfere sub- 
stantially with his capacity to remain in 
the community without supportive treat- 
ment or senices of a long-term or indefi- 
nite duration. In these persons, mental 
disability is se\ere and persistent, resulting 
in long-term limitation of their functional 
capacities for primary activities of daily 
living such as interpersonal relations, 
homemaking, self-care, employment and 
recreation. 



113 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



IM 



PROPOSED RULES 



(15) "Client record" means a written account 
of all services provided a client from the 
time of admission of the client by the fa- 
cility until discharge from the facility. 

(16) "Clinical" means having to do with the 
active direct treatment/habilitation of a 
client. 

(17) "CLLnical staff member" means a profes- 
sional who provides active direct 
treatment/habilitation to a client. 

(18) "Clinical/professional supervision" 
means regularly scheduled assistance by a 
qualified mental health professional, a 
qualified substance abuse professional or 
a qualified developmental disabilities pro- 
fessional to a staff member who is pro- 
viding direct, therapeutic intervention to 
a chent or chents. Ihe purpose of chnical 
supervision is to ensure that each client 
receives appropriate treatment or habili- 
tation which is consistent with accepted 
standards of practice and the needs of the 
client. 

(19) "Contested case" means an administra- 
tive proceeding under G.S. 150B, Article 
3, in which the rights, privileges, or duties 
of a party are required by law to be de- 
termined. 

(20) "Contract agency" means a legally con- 
stituted entity with which the area pro- 
gram contracts for a service exclusive of 
intermittent purchase of service for an in- 
dividually identified client. 

(21) "Day /night service" means a service 
provided on a regular basis, in a structured 
environment that is offered to the same 
individual for a period of three or more 
hours within a 24-hour period. 

(22) "Declaratory ruling" means a formal and 
binding interpretation as to: 

(A) the \alidity of a rule; or 

(B) the applicability to a given state of facts 
of a statute administered by the Depart- 
ment of Human Resources, or a rule or 
order of the Department of Human Re- 
sources. 

(23) "Detoxification" means the physical 
withdrawal of an individual from alcohol 
or other drugs in order that the individual 
can participate in rehabilitation activities. 

(24) "Developmentally delayed children" 
means those whose development is de- 
layed in one or more of the following 
areas: cognitive development; physical de- 
velopment, including vision and he;iring; 
language and speech; psychosocial and 
self-help skills. Ihe specific level of delay 
must be: 



(A) for children from birth to 36 months 
of age, documented by scores 1 Vi stand- 
ard deviations below the mean on stand- 
ardized tests in at least one of the above 
areas of development. Or, it may be 
documented by a 20 percent delay on as- 
sessment instruments that yield scores in 
months; and 

(B) for children from 36 to 60 months of 
age, documented by test performance two 
standardized deviations below the mean 
on standardized tests in one area of de- 
velopment or by performance that is one 
standard deviation below the norm in two 
areas of development. Or, it may be 
documented by a 25 percent delay in two 
areas on assessment instruments that yield 
scores in months. 

(25) "DFS" means the Division of Facility 
Services, 701 Barbour Drive. Raleigh, 
N.C. 27603. 

(26) "Direct care staff means an individual 
who provides active direct care, treatment, 
or rehabifitation or habihtation services to 
chents. 

(27) "Dispensing medication" means prepar- 
ing and packaging a prescription drug or 
device in a container and labeling the 
container with information required by 
state and federal law. Filling or refilling 
drug containers with prescription drugs 
for subsequent use by a client is "dis- 
pensing". Providing quantities of unit 
dose prescription drugs for 5ubsec]uent 
administration is "dispensing". 

(28) "DVIH/DD SAS ' means the Division 
of Mental Health, Developmental Disa- 
bilities, and Substance Abuse Services, 
325 N. Safisbury Street, Raleigh, N.C. 
27603. 

(29) "Documentation" means provision of 
written, dated and authenticated evidence 
of the dehvery of client services or com- 
pliance with statutes or rules, e.g., entries 
in the client record, policies and proce- 
dures, minutes of meetings, memoranda, 
reports, schedules, notices and announce- 
ments. 

(30) "Drug abuse" means psychoactive sub- 
stance abuse which is a residu;d category 
for noting maladaptive patterns of 
psychoacti\e substance use that have 
never met the criteria for dependence for 
that particular class of substance (criteria 
delineated in DSM-HI-R published by the 
American Psychiatric Association, 1400 
K Street, N.W., Washington, D.C. 20005 
at a cost of twcntv-nine dollars and 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



114 



PROPOSED RULES 



ninety-five cents ($29.95) for the soft 
cover edition and thirty-nine dollars and 
ninety-five cents ($39.95) for the hard 
cover edition.) This adoption by refer- 
ence i* H* acoordanoo w+tfe G.S. 
15(HJ 1 1(c). includes subsequent amend- 
ments and editions ot^ the referenced ma- 
tenai. 



(31 J "Drug dependence" means psychoactive 
substance dependence which is a cluster 
of cognitive behavioral, and physiologic 
s\mptoms that indicate that a person has 
impaired control of psychoactive sub- 
stance use and continues use of the sub- 
stance despite adverse consequences 
(criteria delineated in DSM-III-R pub- 
hshed by the rVmerican Psvchiatric Asso- 
ciation, ' 1400 K Street, N.W., 
Washington, D.C. 20005 at a cost of 
twenty-nine doUars and ninety-five cents 
($29.95) for the soft cover edition and 
thirty-nine doUars and ninety-five cents 
($39.95) for the hard cover edition.) This 
adoption by reference i* m accordanc e 
wrtb Gt^ 15QB M(c). includes subse- 
quent amendments and editions of the 
referenced matenal. 

(32) 'DWl" means dnving while impaired, as 
defined m G.S. 20-138.1. 

(33j "DWI substance abuse assessment" 
means a service provided to persons 
charged with or con\icted of DWl to de- 
termine the presence of chemical depend- 
enc> . The "assessment" involves a 
face-to-face interview with a substance 
abuse professional. 

(34) "Early Inter\ention Ser%ices" means 
those ser\ices provided for infants and 
toddlers specified in Section 303.12 of 
Subpart A of Part 303 of Title 34 of the 
Code of Federal Regulations. For the 
purposes of these services, however, 
transportation means assistance in the 
tra\el to and from specified earlv inter- 
\ention services pro\ided bv certified de- 
\elopmental day centers or other 
center-based services designed specificaUv 
for children with or at nsk for disabilities: 
and speech. ph\sica] or occupationcd 
therapy if pro\'ided in a speciafaed setting 
awa\' from the child s residence. Trans- 
portation assistance ma\" be pro\ided bv 
staff, existing public or prixate services or 
bv the famih', who shall be reimbursed for 
their expenses, m accordance with appli- 
cable fee provisions. This adoption by 
reterence » i» uccorduncc' Vi4t4* G.S. 
150n 1 1(c). includes subsequent amend- 



ments and editions of the referenced ma- 
terial. 

(35) "Evaluation" means an assessment ser- 
vice which identifies the nature and extent 
of an individual's problem through a sys- 
tematic appraisal for the purposes of di- 
agnosis and determination of the disability 
of the individual and the most appropriate 
plan, if any, for services. 

(36) "First aid" means emergency treatment 
for injury or sudden illness before regular 
medical care is available. First aid in- 
cludes artificial respiration, the Heirrdich 
maneuver, or other Red Cross first aid 
techniques for relieving airway ob- 
struction, care of wounds and bums, and 
temporary administering of splints. 

(37) "Governing body" means, in the case of 
a corporation, the board of directors; in 
the case of an area authority, the area 
board; and in all other cases, the owner 
of the facdity. 

(38) "Health Services" means those sen'ices 
provided for infants and toddlers specified 
in Section 303.13 of Subpart A of Part 303 
of Title 34 of the Code of Federal Regu- 
lations. This adoption by reference is m 
accordonco with G S. 15QB M(c). in- 
cludes subsequent amendments and edi- 
tions of the referenced matenal. 

(39) "Hearing" means, unless otherwise spec- 
ified, a contested case hearing under G.S. 
150B, Article 3. 

(40) "High risk children" means those from 
birth to 36 months of age for whom there 
is chnical evidence of conditions which 
have a high probability of resulting in de- 
velopmental delay or atypical develop- 
ment and for whom there is clinical 
evidence that developmental or 
therapeutic intervention may be necessary. 
There are two categories of high risk chil- 
dren. These are: 

(A) High Risk-Established: Diagnosed or 
documented physical or mental conditions 
which are known to result in develop- 
mental delay or atypical development as 
the child matures. Such conditions are 
limited to the following: 
(i) chromosomal anomaly or genetic dis- 
orders associated with developmental 
deficits; 
(ii) metabolic disorders associated with 

developmental deficits: 
(iii) infectious diseases associated with 

developmental deficits: 
(iv) neurologic disorders; 
(v) congenital malformations: 



115 



:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



(vi) sensory disorders; or 
(vii) toxic exposure. 
(B) High Risk-Potential: Documented 
presence of indicators which are associ- 
ated with patterns of development and 
which have a high probability of meeting 
the criteria for developmental delay or 
atypical development as the child matures. 
There shall be documentation of at least 
three of the parental or family, neonatal, 
or postneonatal risk conditions as defmed 
in the pubhcation, "NORTH 
CAROLINA CHILD SERVICE CO- 
ORDINATION PROGRAM" available 
from the Division of Maternal and Child 
Health, Department of Environment, 
Health, and Natural Resources, P.O. Box 
27687, Raleigh, NC 27611-7687. adoptod 
m acoordanco wrtfe GtSt 150B M(c) This 
adoption by reference includes subsequent 
amendments and editions of the refer- 
enced material. These conditions are as 
follows: 

(i) maternal age less than 15 years; 
(ii) maternal PKU; 
(iii) mother HIV positive; 
(iv) maternal use of anticonvulsant, 

antineoplastic or anticoagulant drugs; 
(v) parental blindness; 
(vi) parental substance abuse; 
(vii) parental mental retardation; 
(viii) parental mental illness; 
(ix) difficulty in bonding between parent 

and infant; 
(x) difficulty in providing basic parenting; 
(xi) lack of stable housing; 
(xii) lack of familial and social support; 
(xiii) family history of childhood 

deafness; 
(xiv) maternal hepatitis B; 
(xv) birth weight less than 1 500 grams; 
(xvi) gestational age less than 32 weeks; 
(xvii) respiratory distress (mechanical 

ventilator greater than six hours); 
(xviii) asphyxia; 

(xix) hypoglycemia (less than 25 mg dl); 
(xx) hvperbUirubinemia (greater than 20 

mg/di); 
(xxi) intracranial hemorrhage; 
(xxii) neonatal seizures; 
(xxiii) major congenital anomalies; 
(xxiv) CNS infection or trauma; 
(xxv) congenitally acquired infection; 
(xxvi) suspected visual impairment; 
(xxvii) suspected hearing impairment; 
(.\xviii) no well child care by age six 

months; 



(xxix) failure on standard developmental 

or sensory screening test; 
(xxx) significant parental concern; and 
(xxxi) suspected abuse or neglect, who: 

(41) "Hours of operation" means an indi- 
cation of the minimum operational hours 
that a service is expected to be available 
to cUents, but not prohibiting the typical 
closing of a service to accommodate holi- 
days, vacations, staff development activ- 
ities and weather and facdity-related 
conditions but taking into consideration 
the type of service being provided. 

(42) "ICF/MR" (Intermediate Care 
Facihty/ Mentally Retarded) means a fa- 
cility certified as having met federal 
ICF/MR requirements and which pro- 
vides 24-hour personal care, habihtation, 
developmental and supportive services to 
persons with mental retardation or related 
conditions. 

(43) "Incident" means any happening which 
is not consistent with the routine opera- 
tion of the facility or the routine care of a 
client and that is likely to lead to adverse 
effects upon a chent. 

(44) "Infant" means an individual from birth 
through two years of age. 

(45) "Legend drug" means a drug that cannot 
be dispensed without a prescription. 

(46) "License" means a permit to operate a 
facility which is issued by DFS under G.S. 
122C, Article 2. 

(47) ".Medication" means a substance recog- 
nized in the official "United States 
Pharmacopoeia" or "National 
Formulary" intended for use in the diag- 
nosis, mitigation, treatment or prevention 
of disease. 

(48) "Minor chent" means a person under 18 
years of age who has not been married or 
who has not been emancipated by a de- 
cree issued by a court of competent juris- 
diction or is not a member of the armed 
forces. 

(49) "Neighborhood" - See "residential 
setting". 

(50) "Nurse" means a person hcensed to 
practice in the State of North Carolina 
either as a registered nurse or as a licensed 
practical nurse. 

(51) "Operator" means the designated agent 
of the' governing body who is responsible 
for the management of a Uccnsable facil- 

(52) "Outpatient" or "Outpatient service" 
means the same as periodic service. 



■2 NORTH CAROLINA REGISTER April 15, 1992 



116 



PROPOSED RULES 



(53) "Parent" means the legally responsible 
person unless otherwise clear from the 
context. 

(54) "'Periodic ser\ice" means a service pro- 
vided through short, recumng visits for 
persons who are mentally ill, develop- 
mentally disabled or substance abusers. 

(55) "Physical examination" means the pro- 
cedures used by a physician or physician 
extender on behalf of a physician to de- 
termine the physiological and anatomical 
condition of the client. Physical exam- 
ination also means medical examination. 

(56) "Physician extender" means a nurse 
practitioner or a physician assistant ap- 
proved to perform medical acts by the 
Board of .Medical Examiners of the State 
of North Carolina. 

(57) "Preschool age child" means a child from 
three through five years of age. 

(58) "Private facility" means a facility not 
operated by or under contract with an 
area program. 

(59) "Program evaluation" means the sys- 
tematic documented assessment of pro- 
gram activity to determine the 
effectiveness, efficiency and scope of the 
system under investigation, to defme its 
strengths and weaknesses and thereby to 
pro\ide a basis for informed decision- 
making. 

(60) "Provider" means an individual, agency 
or organization that provides mental 
health, mental retardation or substance 
abuse sen'ices. 

(61) "Psychiatric nurse" means an individual 
who is licensed to practice as a registered 
nurse in the State of North Carolina by 
the North Carolina Board of Nursing and 
who is a graduate of an accredited mas- 
ter's level program in psychiatric mental 
health nursing with two years of experi- 
ence, or has a master's degree in behav- 
ioral science with two years of supervised 
clinical experience, or has four years of 
experience m psychiatric mental health 
nursing. 

(62) "Psychiatric social worker" means an in- 
dividual who holds a master's degree in 
social work from an accredited school of 
social work and has two years of clinical 
social work experience. 

(63) "Psychiatrist" means an individual who 
is licensed to practice medicine in the 
State of North Carolina and who has 
completed an accredited training program 
in psychiatr>". 



(64) "Psychotherapy" means a form of treat- 
ment of mental illness or emotional dis- 
orders which is based primarily upon 
%erbal or non-verbal communication with 
the patient. Treatment is provided by a 
tramed professional for the purpose of re- 
mo\ing or modifying existing symptoms, 
of attenuating or reversing disturbed pat- 
terns of behavior, and of promoting posi- 
tive personality growth and development. 

(65) "Psychotropic medication" means 
medication with the primaiy function of 
treating mental illness or personality or 
behavior disorders. These medications 
include, but are not limited to, antipsy- 
chotics, antidepressants, neuroleptics, 
lithium and minor tranquilizers. 

(66) "Qualified alcoholism professional" 
means an individual who is certified by 
the North Carolina Substance Abuse 
Professional Certification Board or who 
is a graduate of a college or university with 
a baccalaureate or advanced degree in a 
human service related field with doc- 
umentation of at least two years of super- 
vised experience in the profession of 
alcohohsm counseling. 

(67) "Qualified developmental disabilities 
professional" means an individual holding 
at least a baccalaureate degree in a disci- 
pline related to developmental disabilities, 
and at least two years of super\'ised 
habilitative experience in working with the 
mentally retarded or otherwise develop- 
mentally disabled or holding a 
baccalaureate degree in a field other than 
one related to developmental disabilities 
and ha\ing three years of supervised ex- 
perience in working with the mentally re- 
tarded or otherwise de\elopmentally 
disabled. 

(68) "Qualified drug abuse professional" 
means an individual who is certified by 
the North Carohna Substance Abuse 
Professional Certification Board or who 
is a graduate of a coUcge or university with 
a baccalaureate or advanced degree in a 
human service related field with doc- 
umentation of at least two years of super- 
vised experience in the profession of drug 
abuse counseling. 

(69) "Qualified mental health professional" 
means any one of the following: psychia- 
trist, psychiatric nurse, practicing psy- 
chologist, psNcluatric social worker, an 
individual with at least a master's degree 
in a related human service field and two 
years of supervised clinical experience in 



117 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



mental health services or an individual 
with a baccalaureate degree in a related 
human service field and four years of 
supervised clinical experience in mental 
health services. 

(70) "Qualified nutritionist" means an indi- 
vidual who has a Master's degree in nu- 
trition, nutrition education or public 
health nutrition and who may or may not 
be a registered dietitian. 

(71) "Qualified substance abuse professional" 
means an individual who is: 

(A) certified by the North Carolina Sub- 
stance Abuse Professional Certification 
Board; or 

(B) a graduate of a college or university 
with a baccalaureate or advanced degree 
in a human service related field with doc- 
umentation of at least two years of super- 
vised experience in the profession of 
alcoholism and drug abuse counseling. 

(72) "Registered dietitian" means an individ- 
ual who has successfuUy completed a na- 
tional examination for the Commission 
on Dietetic Registration and maintains 
registration with that commission through 
approved continuing education activities 
and events. 

(73) "Rehabilitation" means training, care and 
specialized therapies undertaken to assist 
a chent to reacquire or maximize any or 
all lost skills or functional abilities. 

(74) "Research" means inquiry involving a 
trial or special observation made under 
conditions determined by the investigator 
to confirm or disprove a hypothesis, or to. 
expHcate some principle or effect. The 
term "research" as used in this document 
means research which is not standard or 
conventional; involves a trial or special 
observation which would place the subject 
at risk for injur}' (physical, psychological 
or social injury), or increase the chance 
of disclosure of treatment; utilizes ele- 
ments or steps not ordinarily employed 
by qualified professionals treating similar 
disorders of this population; or is a type 
of procedure that ser\'es the purpose of 
the research only and does not include 
treatment designed primarily to benefit the 
individual. 

(75) "Residential setting" means a living area 
or zone in which the primary purpose is 
family residential living and which may 
be located in an area zoned either urban 
residential or rural. 



(76) "Respite discharge" means that point in 
time when no additional incidents of re- 
spite senices are anticipated. 

(77) "Respite episode" means an uninter- 
rupted period of time during which a ch- 
ent receives respite services. 

(78) "Screening" means an assessment service 
which provides for a brief appraisal of 
each individual who presents himself for 
services, in order to determine the nature 
of the individual's problem and his need 
for services. Screening may also include 
referral to other appropriate community 
resources. 

(79) "Secretary" means the Secretary of the 
Department as defined in G.S. 122C-3. 

(80) "Service" means an activity or interaction 
intended to benefit another, with, or in 
behalf of, an individual who is in need of 
assistance, care, habihtation, intervention, 
rehabilitation or treatment. 

(81) "Severely physically disabled person" 
means for the purpose of ADAP (Adult 
Developmental Activity Program) a per- 
son: 

(A) who has a severe physical disabihty 
which seriously limits his functional ca- 
pabiUties (mobihty, communication, self- 
care, self-direction, work tolerance or 
work skills); 

(B) who has one or more physical disabiU- 
ties resulting from amputation, arthritis, 
blindness, cancer, cerebral palsy, cystic 
fibrosis, deafness, heart disease, 
hemiplegia, hemophiha, respiratory or 
pulmonary dysfunction, multiple sclerosis, 
muscular distrophy, musculoskeletal dis- 
orders, neurological disorders (including 
stroke and epUepsy), paraplegia, 
quadriplegia, and other spinal cord condi- 
tions, sickle cell anemia and end stage 
renal disease; and 

(C) whose habilitation or rehabihtation can 
be expected to require multiple habih- 
tation or rehabihtation services over an 
extended period of time. 

(82) "Sheltered employment" means a facih- 
ty's provision of work and work training 
by: 

(A) subcontracting from industries in the 
community and bringing work to the fa- 
cility to be performed; or 

(B) manufacturing its own products in the 
facihty. Chents served in a sheltered em- 
ployment model are those who consist- 
ently achieve earning levels exceeding 
one-half of the minimum wage but who 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



IIS 



PROPOSED RULES 



are not ready for independent employ- 
ment activities. 

(83) "Staff member" means any individual 
u ho is employed by the facility. 

(84) "Substantially mentally retarded person" 
means for the purpose of ADAP a person 
\\ho is mentally retarded to the degree of 
seriously limiting his functional capabili- 
ties, whose habiUtation or rehabilitation 
can be expected to extend over a period 
of time, and includmg; 

(A) moderately mentally retarded persons; 

(B) severely mentally retarded persons; 

(C) profoundly mentally retarded persons; 
or 

(D) mentally retarded persons with a 
handicapping condition so severe as to 
lack the potential for employment at this 
time, either in a sheltered or competitive 
setting. In addition, such individuals 
must have a deficit in self-help, commu- 
nication, socialization or occupational 
skills and be recommended by the voca- 
tional rehabilitation counselor for consid- 
eration of placement in an ADAP. 

(85) "Support services" means services pro- 
vided to enhance an individual's progress 
in his primar\' treatment/habihtation pro- 
gram. 

(86) "Supported employment" means a 
day night service which involves paid 
work in a job which would otherwise be 
done by a non-disabled worker. Sup- 
ported employment is carried out in an 
integrated work site where a small number 
of people with disabilities work together 
and where the work site is not imme- 
diately adjacent to another program serv- 
ing persons with disabilities. It includes 
intensive Ln\ol\ement of staff working 
with the individuals in these integrated 
settings. 

(87) "Toddler" means an individual from one 
through three years of age. 

(88) "Treatment" means the process of pro- 
viding for the physical, emotional, psy- 
chological and social needs of cUents 
through ser\'ices. 

(89) "Treatment habilitation plan" means a 
plan in which one or more professionals, 
pri\ilegcd in accordance with 10 NCAC 
I4K .0319, working with the client and, 
in some cases, family members or other 
service providers, document which inter- 
ventions will be provided and the goals, 
objectives and strategies that will be fol- 
lowed in providing services to the client. 



(90) "Twenty-four hour facility in which 
medical care is an integral component" 
means a facility in which: 

(A) the medication needs of clients may be 
evaluated, medication prescribed and iab- 
oratorv- tests ordered to assist in the diag- 
nosis, treatment and monitoring of 
problems associated with the mental 
health, mental retardation or other devel- 
opmental disabilities or substance abuse 
disorder of clients; and 

(B) proper referral of the client is made to 
medical specialists when needed. 

(91) "Twenty-four hour service" means a ser- 
vice which is provided to a client on a 
24-hour continuous basis. 



Statutory Authority G.S. 
MSB- 1 47. 



I22C-3; I22C-26; 



SECTION .0200 - LICENSURE 

.0210 LICENSE RENtW.\L 

(a) Renewal of regular licenses shall be as 
specified in G.S. 122C-23(e). 

(b) Prior to license renewal, the licensee shall 
submit to DPS the following information: 

( 1) application for license renewal; 

(2) local fire a«4 sanitation inapoction reports 
i i vliich fhall b« submittod on an annual 
basis; aft4 

(3) local sanitation inspection reports on an 
annual basis for facilities which pro\ide 
room or board; and 

(4] (r^ a brief description of any changes in the 
facility since the most recent initial or re- 
newal application form was completed. 

(c) Failure of the licensee to supply the re- 
quired information may result in revocation of 
the license to operate the facility. 

(d) DPS shall obtain any other information 
necessary for proper administration and enforce- 
ment of all applicable licensure requirements. 

Statutor\- Authority G.S. l22C-23(e); I30A-235: 
143B-I47. 

SECTION .0300 - F.XCILITY AND PROGR.AM 
M \N.\GEMENT 

.0315 TRE.\TMENT/HABILIT.\TION 

PLANNING AND DOCUMENTATION 

(a) The governing body shall develop and im- 
plement written policies regarding indi\'idual 
treatment habilitation plans and the qualifica- 
tions of staff, based on education and experience, 
who will be responsible for implementation of 
such plans. 



119 



NOR TH CAROLINA REGIS TER .ipiil 15, 1 992 



PROPOSED RULES 



(b) A treatment/habilitation plan shall be based 
upon an assessment of the cUent's condition, as- 
sets and needs, and the resources to meet these 
needs, and shall be developed in partnership with 
the client. 

(c) The parent or the legally responsible person 
of a minor shall have the opportunity to partic- 
ipate Ln the development and implementation of 
the minor client's individual treatment/ habili- 
tation plan. 

(d) The parent, with client consent, or the le- 
gally responsible person of an adult shall have the 
opportunity to participate in the development 
and implementation of the adult chent's individ- 
ual treatment/habilitation plan. 

(e) Clinical responsibility for the development 
and implementation of the treatment/habilitation 
plan shall be designated. 

(f) Initial treatment/habilitation objectives shall 
be documented, if services are to be provided, 
prior to the establishment and implementation 
of the comprehensive treatment/habilitation 
plan. 

. (g) Except as provided in Paragraphs (h) 
through (j) of this Rule, a comprehensive plan 
shall be developed and initiated within 30 days 
of admission for clients who are expected to re- 
ceive services from the facihty beyond 30 days. 
The plan shall include, as appropriate to the ch- 
ent's needs: 

(1) documentation of the estabhshed diagno- 
sis; 

(2) time-specific, measurable goals for 
treatment/habihtation; 

(3) general strategies or procedures to be 
undertaken in order to meet goals and the 
direct care staff responsible for implemen- 
tation; 

(4) time-specific, measurable education or 
treatment goals for family or significant 
others, if applicable; and 

(5) a schedule for time-specific planned re- 
views, which may be set, in addition to 
those required in Paragraph (k) of this 
Rule. 

(h) For all facihties serving infants and toddlers 
with or at risk for developmental disabihties, de- 
lays or atypical de\elopment, except for respite; 
(1) there shall be a habihtation plan which is 
referred to as the Individualized Family 
Service Plan (IFSP) which shall include: 

(A) a description of the child's present 
health status and levels of physical (in- 
cluding vision and hearing), language and 
speech, cognitive, psychosocial, and self- 
help skills development; 

(B) with the concurrence of the family, a 
description of the family's strengths and 



needs related to enhancing the develop- 
ment of the child; 

(C) goals for the child, and, if requested, 
goals for the child's family; 

(D) criteria and time frames to be used to 
determine progress towards goals; 

(E) planned habihtation procedures related 
to the goals; 

(F) a statement of the specific early inter- 
vention services to be provided to meet 
the identified child and family needs, the 
initiation dates, frequency and method, 
duration, intensity and location of service 
delivery, and the persons or agencies re- 
sponsible; 

(G) the designation of the staff member re- 
sponsible for service coordination; 

(H) the plans for transition into services 
which are the responsibility of the N.C. 
Department of PubUc Instruction, when 
apphcable; 

(I) the payment arrangements for the spe- 
cific services delineated in Subparagraph 
(h)(1)(F) of this Rule; 

(J) a description of medical and other ser- 
vices needed by the child, but which are 
not required under P.L. 99-457, and the 
strategies to be pursued to secure those 
services through public or private re- 
sources. 

(2) The IFSP shall be: 

(A) reviewed on at least a semi-annual basis 
or more frequently upon the family's re- 
quest; and 

(B) revised as appropriate, but at least an- 
nually. 

(3) The initial development and annual re- 
vision process for the IFSP for infants and 
toddlers shall include participation by: 

(A) the parent or parents of the child; 

(B) other family members, as requested by 
the parent; 

(C) an advocate or person outside of the 
family if the parent requests that the per- 
son participate; 

(D) the provider of the early intervention 
services; 

(E) the service coordinator designated for 
the family, if different from the provider 
of the early intervention services; and 

(F) the provider of the assessment sendee, 
if different from the provider of the early 
intervention services. 

The semi-armual review process shall include 
participation by persons identified Ln Subpara- 
graphs (h)(3)(A) through (F) of this Rule. If any 
of these individuals are unable to attend one of 
the development or review meetings, arrange- 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



120 



PROPOSED RULES 



ments shall be made for the person's involvement 
through other means such as participation in a 
telephone conference call, having a knowledge- 
able authorized representative attend the meeting 
or making pertinent records available at the 
meeting. 

(4) The IFSP for infants and toddlers is based 
upon the results of the assessment refer- 
enced in 10 NCAC 14K .0314(e). How- 
ever, early intervention services may 
commence before completion of this as- 
sessment if parental consent is obtained, 
the assessment is completed within the 
time period referenced in 10 NCAC 14K 
.0314(e), and an interim IFSP is devel- 
oped. The interim IFSP shall include: 

(A) the name of the ser\ice coordinator 
who will be responsible for the imple- 
mentation of the IFSP and coordination 
with other agencies and individuals; 

(B) goals for the child and family when re- 
commended; 

(C) those early inter\'ention services that are 
needed immediately; and 

(D) suggested acti\ities that may be carried 
out by the family members. 

(5) Each facility or individual who has a direct 
role in the provision of early intervention 
services specified in the IFSP is responsi- 
ble for making a good faith effort to assist 
each eligible child in achie\'ing the goals 
set forth" in the IFSP. 

(6) The IFSP shall be developed within 45 
days of referral for those children deter- 
mined to be eligible. The referral shall be 
as defmed in lO^NCAC 14K .0314(e)(1 1). 

(i) The goals for a cUent who receives services 
from facihties pro\idLng day activity or alterna- 
tive family Uving, half-way house, therapeutic 
camp or group home services in which the 
supervision and therapeutic intervention are lim- 
ited to sleeping time, home living skills and lei- 
sure time activities, may be limited to life-skill, 
social or recreational goals. 

(j) The goals for a chent who receives services 
from a communit\ respite facility may be limited 
to the special needs of the client, including 
medications to be administered, dietary consid- 
erations and expectations regarding other ser- 
vices. 

(k) A full review of each client's treatment/ 
habilitation plan shall be conducted at least an- 
nually by the responsible professional in accord- 
ance with the facihtv s qualitv assurance plan, as 
determmedby 10 NCAC 14K .0319. ITie review 
shall include: 

(1) the chent's continuing need for service; 
and 



(2) a continuation or update of the client's 
treatment/ habihtation plan as defmed in 
Paragraph (g) of this Rule. 

Scatutory Authority G.S. I22C-26: I43B-147. 

SLBCH.APTER 14M - LICENSURE RULES FOR 

MENTAL RETARDATION/DEVELOPMENTAL 

DISABILITIES FACILITIES 

SECTION .0400 - GROUP HOMES FOR 

CHILDREN WITH MENTAL RETARD.\TION 

OR OTHER DEVELOPMENTAL DISABILITIES 

.0410 PARTICIPATION OF THE FAMILY OR 
LEGALLY RESPONSIBLE PERSON 

(a) Staff shall help the family in understanding 
mental retardation and other developmental dis- 
abilities, the child's development, and the extent 
of the child's handicap. 

(b) Family members shall be provided the op- 
portunity to participate in training seminars. 

(c) Each family shall be encouraged to main- 
tain an ongoing relationship with their child 
through such means as family visits to the facil- 
ity, and the child's visits with the parent or the 
legally responsible person outside the facility. 

(d) Reports to the parent or the legally re- 
sponsible person shall be submitted »* writing at 
least annually, with ^he opportunity oxtondod te- 
Ae parent ©f Ae logaUy rooponc . iblo poroon fof 
participation i«- at- l e ast BPt% conforoncQ annually. 
Reports mav be in writing or take the form of a 
conference and shall focus on the child's progress 
toward meetmg indi\'idual goals. 

Statutoiy Authority G.S. I22C-26: 143B-I47. 



l\otice is hereby given in accordance with G.S. 
I50B-2I .2 that the Division of Aging intends to 
adopt nde(s) cited as 10 \CAC 22Q .0/0/ - 
.0/03, .020/ - .0202. 

1 he proposed effective date of this action is Julv 
/, /992. 

1 he public hearing will be conducted at 2:00 
p.m. on April 30. /992 at the Division of Aging, 
693 Palmer Dr.. Room /2^ Raleizh, S.C. 



R 



easons for Proposed Actioru: 



10 NCAC 22Q .0101 - Establishes the scope of the 
Housing and Home /mprovemcnt senice. 



121 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



10 NCAC 22Q .0102 - Provides definitions for 
Housing and Home Improvement service. 

10 NCAC 22Q .0103 - Identifies target population 
for the Housing and Home Improvement service. 

10 NCAC 22Q .0201 - Specifies client eligibility 
criteria for the Housing and Home Improvement 
service. 

10 NCAC 22Q .0202 - Provides service character- 
istics for the Housing and Home Improvement 
service. 



Co 



■ omment Procedures: Written comments will 
be received by the Director of the Division of Ag- 
ing through May 15, 1992. Verbal comments will 
be heard at the public hearing. 

CHAPTER 22 - AGING 

SUBCHAPTER 22Q - HOUSING AND HOME 
IMPROVEMENT SERVICE 

SECTION .0100 - SCOPE OF SERVICE 

.0101 SCOPE OF HOUSING AND HOME 
IMPROVEMENT SERVICE 

Housing and Home Improvement Service 
means assistance to older adults in obtaining or 
retaining, adequate housing and basic furnishings 
or appliances, or both. The service has three 
distinct elements: 

(1) Provision of counseling, advocacy and 
training to individuals or to groups; 

(2) Provision of labor and materials for minor 
renovations and repairs to dwellings to rem- 
edv conditions which are a risk to the per 



sonal health and safety of older adults or to 
enhance mobihtv for functionaUy impaired 
individuals; 
(3) Provision of basic furnishings or appliances, 
or both, to remed\' deficiencies which pose 
a risk to the basic health and safety of the 
older adult. 

Statutory Authority 
I43B-ISI.I(c). 



G.S. l43B-ISI.I(a)(II); 



.0102 DEFINITIONS 

(a) "Adequate housing" means a dwelling that 
is lawfully and reasonably sutficient to meet the 
needs of the individual and his family. 



(b) "Advocacy" means efforts on behalf of 
older adults who require assistance with accessing 
or obtaining community services and supports. 

(c) "Basic appliances" means items necessary 
for refngerating or preparing food, or heating or 
cooling the home. 



(d) "Basic furnishings" means essential house- 
hold items. 

(e) "Minor renovations and repairs" means 
restoration of the dwelling so as to lessen nsks to 
personal health and safety without including any 
structural change to the dwelling. 

(f) "Obtaining" under this service means lo- 
cation of and negotiating for adequate housing 
or basic furnishings and arranging for relocation 
to other housing or for the movement of basic 
furnishings. 

(g) "Older adult" means an individual 60 years 
of age or older. 

(h) "Own home" means that the individual is 
living in a residence he maintains for himself or 
is maintained for him by his caretaker. "Own 
home" does not include any group care. 

(i| "Retaining" under this service means nego- 
tiating with individuals who have influence over 
or control of the individual's ability to continue 
keeping his abode or his basic furnishings. 



Statutory Authority G.S. 
I43B-I8l.l(c). 



143B-l8I.I(a)(II); 



.0103 TARGET POPULATION 

Older adults needing one or more elements of 
the service, such as counseling, advocacy, train- 
ing, renovations or repairs to dwellings, basic 
furnishings or appliances, to obtain or retain ad- 
equate housing that enables them to remain in, 
or return to, their own homes and alle\iates risk 
to their personal health and safety. 



Statutory Authority 
143B-lSI.!(c). 



G.S. 143B-lSI.I(a)(II); 



SECTION .0200 - SERVICE PROVISION 



.0201 CLIENT ELIGIBILITY FOR HOUSING 
AND HOME IMPROVEMENT SERVICE 

(a) Persons 60 years of age and older who meet 
the criteria for the target population are deter- 
mined to be in need of the sen.'ice and are eligi- 
ble. 

(b) Persons acting on behalf of an eligible older 
adult are allowed to be a direct recipient of 
counseling, advocacy and training. 



Statutory .Authority G.S. 
]43B-ISI.I(c). 



I43B-J8I.I(a)(ll); 



.0202 SERVICE DELIVERY 

(a) Renovations and repairs to renter occupied 
dwellings may be pro\ided onJv when this is not 
the responsibility of the landlord. 

(b) Basic furnishings or appliances, or both, 
may be provided to residents of renter occupied 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



122 



PROPOSED RULES 



dwellings only when such items are not the re- 
sponsihilitv of the landlord. 

(c) Reimbursement is a\'ailable for the cost of 
salar\, Iringe benefits and other administrative 
costs associated with the pro\lsion of Housing 
and Home Improvement Services. 

(d) Reimbursement is available for the costs 
of labor or matenal, or both, needed for reno- 



vations and repairs to the homes of eligible mdi- 
\'iduals under the foUowmg circumstances: 

( 1 ) the reno\ations or repairs are minor and 
do not mclude any structural change: re- 
imbursements are limited to a maximum 
of eight hundred dollars ($800.00) for la^ 
bor or matenals. or both, per area of re- 
pair: e.g., roof, bathroom, and 

(2) the costs are reasonable and necessary, and 

(3) the condition of the home is such that 
minor renovations or repairs will make 
the dwelling safe and healthy for the oc- 



(c) 



cupants. 
Reimbursement is 



ilable for the 



lor me pur- 



chase of new or used basic fumistungs or apph- 
.ances as long as they are in such condition that 
they meet the needs of the indi\idual. 



Statutory Authority G.S. 143B-IS1.1 (a)( 1 1 J; 
143B-ISl.l(c). 

■k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k 



ly otice is hereby given in accordance with G.S. 
J50B-2J.2 that the Department of Human Re- 
sources intends to adopt rules cited as JO .\CAC 
46D .0301 - .0306. 

1 he proposed effective date of this action is July 
1, 1992. 

1 he public hearing will be conducted at 1:00 - 
3:00 p.m. May 15, 1992 at the Council Building. 
Room 201 , 701 Barbour Drt\e. Raleigh, SC. 

IKeason for Proposed .Action: Rulemaking Peti- 
tion by the Child Day Care Commission. 



Cc 



omment Procedures: Written or oral com- 
ments may be submitted at the Public Hearing. 
Written comments may also be submitted prior to 
the Public Hearing. Comments or Questions 
should be directed to .Mr. Jackie Sheppard. APA 
Coordinator. Division of Facility Setyices, P.O. 
Box 29530. Raleigh. .\C 27626-0530. Telephone 
(919) 733-2342. 

CH.\PTFR 46 - DA\ C.VRE RULES 



SUBCHAPTER 46D - STATE DAY CARE 
SERMCES FUND 

SECTION .0300 - REQUIREMENTS FOR 
CONTRACTS WITH PRI\ .\TE AGENCIES 

.0301 SCOPE 

The rules of this Section shall apply to all pri- 
\ate agencies admmistcring the state subsidized 
day care program withm anv geo.graphical area 
of North Carolina under contractual arrangement 
with the Department of Human Resources or a 
local department of social services. 

Statutory .Authority G.S. 143B-153(2a). 

.0302 APPROVAL 

(a) All contracts with private agencies admin- 
istering the state subsidized day care program 
shall be approved by the Department prior to 
their execution. 

(b) Iiach private agency administering the sub- 
sidized dav care program shall pro\ide to the 
Department, pnor to execution of a contract to 
administer the program, a complete and detailed 
copy of Its budget, including both income and 
expenditures. Ihe private agency shaU demon- 
strate to the satisfaction of the Department suffi- 
cient dependable sources of income to insure its 
continued operation during the contract penod. 

Statutory Authority G.S. 143B-153(2aj. 

.0303 LENG LH OF CONTRACT 

Contracts with private agencies to administer 
the state da\ care program shall be for a term not 
to exceed one vear and shaU expire on or before 
the end of the state tlscal \ear. 

Statutory Authority G.S. 143B-I53{2). 

.0304 ADMINISTRATION OF FUNDS 

(a) Stale and federal funds for child dav care 
services shall be disbursed onl\ as reimbursement 
to the pri\ale agency for funds previousK" paid 
bv the agency to da\ care providers for da\ care 
services. 

lb) 1 he pn\ate agency shall reimburse pro\id- 
crs for authon/ed services within no more than 
1(1 working da\ s after the end of the calendar 
month m which ser\'iceN w.ere proNided. 

Statutory Authority G.S. 143B-153{ 2a). 

.0305 ADMINISIR.UION OF PROGRAM 

(a) Each pri\'ate agency administering the sub- 
sidized day care program shall exercise an\- pow- 
ers and duties delegated to it under this Chapter 



123 



7:2 NORTH CAROLL\A REGISTER .April 15, 1992 



PROPOSED RULES 



or under contract in a fair and impartial manner. 
It shall not discriminate with respect to any day 
care parent or day care provider in reaction to 
any complaint lodged with or against the agency 
by that parent or day care provider or in reaction 
to any opposition or support expressed by that 
parent or day care provider to a position taken 
by the agency on any day care issue. It shall 
comply fuUy with the parental freedom of choice 
provisions of 10 NCAC 46H .0109. 

(b) A private agency determined by the Secre- 
tary or his designee to have violated the pro- 
visions of this Rule shall be inehgible to contract 
for administration of the subsidized day care 
program funds for a period determined bv the 
Secretary of up to three years from the date of the 
Secretary's determination that a violation has 
occurred. Determinations by the Secretary may 
be appealed by the agency or b^ the complainant 
pursuant to G.S. 150B-23. 

Statutory Authority G.S. I43B-I53(2a). 

..0306 RECORDS 

(a) If the private agency is organized as a cor- 
poration or unincorporated association, it shall 
upon request of the Department or other con- 
tractor, open its minute books of meetings of di- 
rectors, shareholders, or members for inspection. 

(b) Each private agency administering state day 
care funds shall maintain records of all receipts 
and disbursements for a period of three years 
following final payment for the contract period, 
or until all audits begun within the three-year 
period are complete. 

(c) If a private agency ceases operation, it shall 
provide the Department with copies of the re- 
cords specified in this Rule. 

(d) Each private agency administering state or 
federal day care services funds shall have a writ- 
ten policy for the inspection, examination, and 
copying of public records maintained by the 
agency. The written policy shall comply with the 
provisions of Chapter 132 of the General Stat- 
utes. 

Statutory .Authority G.S. I43B-I53(2a). 

TITLE 1 1 - DEPARTMENT OF 
INSURANCE 



ly otice is hereby given in accordance with G.S. 
150B-2I .2 that the N.C. Department of Insurance 
intends to amend rules cited as 1 1 NCAC 3 .0002, 
.0006, .0008: repeal rules cited as II NCAC 3 
.0005, .0007. 



1 he proposed effective date of this action is July 
I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on April 30, 1992 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 North Salisbury Street, 
Raleigh, NC 2761 1. 

IXeasonfor Proposed Action: To reflect changes 
in the Department's structure and to make corre- 
sponding amendments and repeals to conform 
with contested case hearing rules. 

K^omment Procedures: Written comments may 
be sent to Bill Hale, Hearings Division. P.O. Box 
26387, Raleigh, NC 276/ J. Oral presentations 
may be made at the public hearing. Anyone hav- 
ing questions should call Bill Hale or Ellen 
Sprenkel at (919) 733-4529. 

CHAPTER 3 - HEARINGS DIVISION 

.0002 PLRPOSE OF DIVISION 

The Legal Pivitiion counoolo. advioos aft4 fe«- 

Staff ift aH matters nocoooaP i f fe* tbe g e neral st4- 
minJGtration »f Ae insuranco laws &( tfei« stato 
aft4 othor matters over which tlw Commi i T i oionor 
has supor^'isor^' afl4 regulatory juriodiotion. The 
I learings Division has general supervisory au- 
thority over rule-making, proposed legislation, 
appeals to the Commissioner that are provided 
for and authorized by statute, departmental bul- 
letins and legal directives, hearings provided for 
in Chapter 58 of the General Statutes, sen,'ice of 
legal process upon the Commissioner as provided 
for in Chapter 58 of the General Statutes, and 
contested cases and hearings under Chapters 58 
and 150B of the General Statutes and under 
Chapter 1 of this Title. The Commissioner shall 
appoint a Deputy Commissioner to oversee the 
operations of the I learings Division. 

Statutory Authority G.S. 58-2-1; 58-2-5: 58-2-25: 
58-2-40(1); 58-2-50; 58- J 6-30: 58-16-35: 
58-39-85; 58-21-100; 58-22-20(1); 5S-22-40(b); 
58-33-30(h)(2); I50B-2I. 

.0005 SERVICE OF LEGAL PROCESS 

North Carolina General Statute S e ction 58 153, 
5S 153.1. 58 3Q7. 58 - 1 10, 58 508(1), 58 5n(b), 
aft4 5 8 615(h)(2) provide ttet- f i onic e ©f l<*gai 

1^^^^^^^^^^ ^^T^^T ^^^T T^^^^^^^ ^^^^T^^T ill..' La 1 v.tAXV.v^ v. v ^ * i 1. 1 ■ vj.i 4.a^- ..J f 

inf i uranco support organisations, ft4t retention 
afl4 purchasing groups, afi4 non r e sid e nt 
licenoooG doing business ift Ats stal e by sening 
such process upon tbe Commissionor ©f a deputy 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



124 



PROPOSED RULES 



4t4¥ appointed fef ouch purpooo. The Commio 
sioncr vritt appoint a Joputy »f doputiofl within 
the dopartmont te roooivo aft4 porfcct aJi legal 
procoor . m accordanco ¥i4th- the pro' i ioiono ef the 
applicable otatutoD. 



Statutory Authority 
58-397; 58-440; 
58-61 5(h) (2). 



G.S. 58-153; 5S-I53.I; 
58-508(1); 58-5l2(b); 



.0006 RFCORDS: ELFXTROMC PROCESS 
PROHIBITED 

(a) Hearing records, transcripts and orders of the 
Commissioner as well as copies of documents in 
civil actions in which the Commissioner is a 
party are on fde in the Logal \ learings Division 
and may be inspected in accordance with 44 
NC.\C 4- rS^VU: Chapters 58 and 132 of the 
General Statutes and applicable mles in this Ti- 
tle, 

(b) Ser\ice of legal process upon the Commis- 
sioner as attorney to receive process under G.S. 
l.\-l. Rule 4 or under G.S. Chapter 58 is not 
valid and will not be accepted if it is made 
through any electronic medium, including fac- 
simile transmission. Only those methods of ser- 
vice of process upon the Commissioner provided 
for in G.S. l.-\-l. Rule 4 and in G.S. Chapter 
58 will be recognized by the Commissioner or 
his duly appointed deputy. 

Statutory Authority G.S. 58-2-40(1); 58-2-100; 
58-16-30; 58-16-35. 

.0007 PLRCMASE OF HEARING TRANSCRIPTS 

• A copy »f the hearing tninsoript may he pur 
char . od provided a roquoat thorufor i* made » 
i i vriting ' . vith the h f uring officer prior t€* Bf at t4*e 
oommencemont ©t the hearing. 

Statutory Authority G.S. 58-9.3. 

.0008 LEGAL OPINIONS 

(a) WTien a person who is regulated by the De- 
partment requests clanfication of a statute or rule 
where the person is engaging or is about to en- 
gage in a business acti\ity that may violate the 
statute or rule, the Department may honor the 
request, subject to a\ailable resources or in the 
discretion of the Deputy Commissioner of the 
Legal I learings Di\ ision. 

(b) A request for a legal opinion made by a 
person who is in\olved in a legal »f factual tfe- 
pute proceedmg. including litigation, arbitration, 
or mediation, or by a person who is invohed in 
a tactual dispute with any person regulated bv the 
Department shall not be honored. A request for 



a legal opinion on a hypothetical fact situation 
shall not be honored. 

(c) A requeot fof a legal opinion e» a hy- 
pothetical feet situation shall net- he honored. 
An\' legal opinion rendered under this Rule shall 
be rendered only bv an attorney dulv Ucensed by 
the State of North Carolina. 

(d) Every request for a legal opinion as t©' hew 

this Rule must be made in writing. Such written 
request must be addressed to: Commissioner of 
Insurance. A1TENT10N: Deputy Commis- 
sioner, Hearings Division, N.C. Department of 
Insurance. P.O. Box 26387, Raleigh. N.C. 27611. 
Lhe person making the request should ma>- be 
advised that it may not be appropriate for the 
Department to render a legal opinion and shall 
be advised that any legal opinion rendered by the 
Commissioner »f hi« counsel, other than a 
doclaratopy ruling issued under Qr^ 150B 17, is 
not binding on the Commissioner, and does not 
prevent the Commissioner from subsequently 
acting in a manner inconsistent with the legal 
opinion's conclusion. 

(e) This rule does not affect or apply to opin- 
ions rendered to the Commissioner or his em- 
ployees by the Attorney General or his 
employees. This rule does not apply to 
declaratory' rulings made under G.S. 150B-4 and 
11 NCAC 1 .0300. 

Statutory Authority G.S. 58-2-25; 58-2-40(1). 



1\ otice is hereby given in accordance with G.S. 
150B-2I.2 that the .V.C. Department of Insurance 
intends to adopt rules cited as 1 1 XCAC 4 .0120 
- .0122, .0429 - .0431; amend rules cited as 11 
NCAC 4 .0319. .0415, .0417 - .0421, .0423 - .0424 
and repeal rules cited as II SCAC 4 .0425 - 
.0428. 

I he proposed effecti\e date of this action is July 
1. 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on April 30. 1992 at the Dobbs Building. 3rd 
Floor Hearing Room, 430 Sorih Salisbury Street. 
Raleigh, \C'27611. 



R 



eason for Proposed A ction: 



II NCAC 4 .0120 - .0122, .0429 - .04.^1 - To keep 
current with insurance industn- practices and to 



125 



7-~> 



NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



afford consumers better protection in dealing with 
agents and insurers. 

1 1 NCAC 4 .0319, .0415, .0417 - .0421, .0423 - .0424 

- To keep current with insurance industry practices 
and to afford consumers better protection in 
dealing with agents and insurers; and to clarify 
that rules regarding claims practices apply to first 
and third-party claims and to consolidate and up- 
date rule on after market parts. 

1 1 NCAC 4 .0425 - .0428 - To consolidate and up- 
date the provisions of the rules on after market 
parts. 



Co 



'Omment Procedures: Written comments may 
be sent to Bill Stevens, Consumer Division, P.O. 
Box 26387, Raleigh, NC 27611. Oral presenta- 
tions may be made at the public hearing. Anyone 
having questions should call Bill Stevens at (919) 
733-2004 or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 4 - CONSUMER SERVICES 
DIVISION 

SECTION .0100 - GENERAL PROVISIONS 

.0120 POLICY OR SERVICE FEES 

An agent, broker, or limited representative who 
intends to charge a policy or ser\'ice fee in ac- 
cordance with G.S. 58-33-85(b) shall not do so 
unless he complies with the following: 

(1) A sign that informs consumers in large bold 
print that a policy or service fee of (amount) 
will be charged, shall be displayed in a 
prominent place so as to be seen and read 
from any part of the office lobby. 

(2) The consumer's consent in writing is ob- 
tained with the date and amount shown each 
time a policy or service fee is charged. 

(3) A receipt for the payment of a policy or 
service fee shall be issued separately from the 
receipt issued for the policy premium. 

Statutory Authority G.S. 58-2-40; 58-33-85(b). 

.0121 PREMIUM PAYMENT RECEIPTS 

Premium payment receipts shall contain the 
name and address of the agency or agent, broker, 
or limited representative, or the insurer. 

Statutory Authority G.S. 58-2-40; 58-2-185; 
58-2-/95. 

.0122 POWER-OF-ATTORNEY PROHIBITED 

\o agent, broker, or limited representative shall 
obtain a power-of- attorney from a consumer that 
authorizes the agent, broker, or limited represen- 
tative to sign insurance-related forms. 



Statutory Authority G.S. 58-2-40. 

SECTION .0300 - LIFE: ACCIDENT AND 
HEALTH 

.0319 CLAIMS PRACTICES: LIFE: ACCIDENT 
AND HEALTH INSUR.\NCE 

The commissioner shall consider as prima facie 
violative of G.S. 58 51.1(11) 58-63-15(11) the 
failure by an insurer to adhere to the following 
procedures concerning settlement of Ufe, acci- 
dent, health and disability claims when such fail- 
ure is so frequent as to indicate a general business 
practice: 

(1) Examining Physician's Opinion. When the 
patient's health is in question, an insurer 
should give greater weight to the opinion of 
a physician who has examined the patient 
than to the opinion of a physician who has 
not examined the patient and whose opinion 
is based solely on a review of the examining 
physician's notes or reports. As used in this 
Section, "examination of the patient" shall 
include the interpretation by a specialist of 
the results of diagnostic tests performed on 
the patient by others. 

(2) Settlement Offers. Initial offers of settle- 
ment or compromise made by an insurer or 
its representative shall remain open for a 
reasonable period of time. 

(3) Multiple Health Impairments. When an 
insured is confmed to the hospital with 
multiple health impairments some of which 
may be excluded from coverage, the insurer 
or its representative shall make pro rata 
payments where treatment for excluded 
conditions can be separated. 

(4) Assignment of Benefits. If an accident, 
health or disability contract does not pro- 
hibit assignment of benefits and a proper 
assignment (including notice to the insurer 
prior to the payment of the claim) is made, 
the insurer shaU honor the assignment even 
though it may have erroneously paid the in- 
sured. Submission of a completed claims 
form G33H and its successor(s) indicating 
that an assignment is on file shall be treated 
as though it were submission of the actual 
assignment. 

(5) Claim Status Reports. If benefits claimed 
under an accident, health or disability con- 
tract have not been paid within 44 30 days 
after receipt of the initial claim by the 
insurer, the insurer shall at that time mail a 
claim status report to the insured. The 
Claim Status Report shall include the fol- 
lowing information: 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



126 



PROPOSED RULES 



(C) 



The date upon which the insurer received 
the initial claim; 

7he insurer s claim or other identifying 
number; 



The name of insurer's representative 
handling the claim, the representative's 
telephone number, and the hours and 
da\ s the representati\'e ma\ be contacted 
bv telephone: and 
(D) The identification of specific initial claim 
documentation disputed by the insurer. 
All initial claim documentation not dis- 
puted shall be paid within the 30-day time 
penod specilied m this Rule. 

Statutory' Authority G.S. 58-2-40; 5S-63-I5; 
53-65- 1; 5S-65-40; 58-6"-65; 58-6^-150. 

SECTION .0400 - PROPERTY .\ND LI.\BILITY 

.0415 SAFE DRIVER INCENTIVE PLAN 

The following are Department of Insurance 
policies regarding the Safe Driver Inruranc t ? In- 
centive Plan C SDIP"): 
(Ij License revocation for refusal to submit to 
chemical tests shall not be considered con- 
viction of a moving traffic violation. 

(2) A conviction for driving the wrong way on 
a one-way street is not a con\'iction for 
driving on the wrong side of the road. 

(3) The revocation or suspension of a driver's 
License solely because of the accumulation 
of motor vehicle points shall not be consid- 
ered a conviction. 

(4) WTien new operators are added to an auto- 
mobile policy, their SDIP points may be 
added to the policy at the same time cover- 
age is extended to them. 

(5) Point ' j SDIP points for an operator whose 
Ucense has been suspended or revoked may 
be added only at the date the operator again 
becomes eligible for license with the follow- 
ing exception: SDIP points may be charged 
at the inception date of the current p>olicy if 
the operator has previously been con\icted 
of a moving traffic \ iolation w hile his license 
was suspended or resoked or if there is reli- 
able evidence that the operator does, in fact, 
operate a motor vehicle. 

(6) If an operator dies or permanently leaves 
an insured's household dunng the policy 
period, his SDIP points shall be removed at 
the time of his death or departure. 

(7) In at-fault accidents, SDIP points for bodily 
iniur\ shall not be assigned on account of 
pa\mcnt of medical costs for diagnostic 
purposes if the diagnostic procedures indi- 



cate that the accident did not result in bodily 
injury. 

Statutory Authority G.S. 58-2-40: 58-36-65; 
58-36-75. 

.0417 DRIVE-IN CLAI.M SERVICE FACILITIES 

No insurer shall require any third-party claim- 
ant or insured to use a drive-in claim senice op- 
erated by the insurer. The third-party claimant's 
or insured s voluntary utilization of a drive-in 
claim ser\ice shall not prejudice the right of ei- 
ther party to obtain independent appraisals and 
negotiate settlement on the basis of such ap- 
praisals. 

Statutory Authority G.S. 58-2-40; 58-63- J5. 

.0418 TOTAL LOSSES ON MOTOR VEHICLES 

The commissioner shall consider as prima facie 
violative of G.S. 5 8 51.1(11) 58-63-15(11) the 
failure by an insurer to adhere to the following 
procedures concerning settlement of covered 
"total loss" motor vehicle claims when such fail- 
ure is so frequent as to indicate a general business 
practice: 
( 1 ) If the insurer and the insured or third-partv 
claimant are initially unable to reach an 
agreement as to the value of the \ehicle. the 
insurer shall base any further settlement offer 
not only on published regional a\erage \'al- 
ues of similar vehicles, but also on the \alue 
of the vehicle in the local market. As used 
in this Rule, 
values" 



"published regional average 
means those a\cra2e automobile 



(2j 



values published in guides such as but not 
hmited to the guide book published bv the 
National .-Vutomobile Dealers Association 
or similar publications: but does not include 
those automobile values as determined bv 
and as identified in privately owned data- 
bases if access to such databases requires the 
insured or third-partv ckumant to pav or 
incur anv charge or fee, such as but not 
limited to telephone charges or fees, or 
newspaper or similar media ads. Local 
market value shall be detennined by using 
either the local market price of a comparable 
vehicle or, if no comparable vehicle can be 
found, quotations from at least two qualified 
dealers within the local market area. Addi- 
tionally, if the claimant represents that the 
vehicle actually owned by him was in better 
than average condition, the insurer shall gi\e 
due consideration to the condition of the 
claimant's \ehicle prior to the accident. 

Where the insurer has the right to elect to 
replace the vehicle and does so elect, the re- 



127 



\-2 \ORTH CAROLINA REGISTER April! 5, 1992 



PROPOSED RULES 



quiries from the insured or third-party 
claimant shall be deemed to be a violation 
of this Rule. 



(b) -Ne adjuster ef apprais e r ohall: No claims 
management person, agent, limited represen- 
tative, broker, adjuster, appraiser, or other insur- 
er's representative shaU: 

f4-^ r e commend Ae utilLiation ef a particular 
motor vohicl e repair aon'ice without 
clearly informin g tbe claimant y«rt- he is 
under ae- obligation te- »w the recom 
mended repair ser i 'ico aft4 fway «se the 
sop i 'ice ©f has choice; 

(1) (-3) accept any gratuity or other form of 

remuneration from a repair oor i 'ico any 
provider of services; fef rooommonding 
that- repair oerv^ice t» claimants; 

(2) (4^ purchase salvage from a third-party 
claimant or insured whose claim he is ad- 
justing or appraising without first disclos- 
ing to the third-party claimant or insured 
the nature of his interest in the trans- 
action; 

• Hi H^ intimidate or discourage any third-party 
claimant or insured from seeking legal ad- 
vice and counsel by withdrawing and re- 
ducing a settlement offer previously 
tendered to the claimant or threatening to 
do so if the third-party claimant or insured 
seeks legal advice or counsel. No adjuster 
shall advise a third-party claimant or in- 
sured of the advisability of seeking »f ftet- 
G e oldng legal counsel nor BhoU recommend 
any legal counsel to any third-party 
claimant or insured under any circum- 
stance. 

Statutory Authority G.S. 58-2-40; 58-33-10; 
58-33-25; 58-33-30; 58-35-25; 58-63-15; 
58-65-40. 

.0424 AFTER MARKET ALTOMOBII.E PARTS 

(a) The purpose of this Rule is to set forth 
standards for prompt, fair, and equitable settle- 
ments of motor vehicle insurance claims with re- 
gard to the use of after market parts. 

(b) As used in this Rule: 

(1) "After market part" means a part made 
by a nonoriginal manufacturer. 

(2) "Insurer" includes any person authorized 
to represent the insurer with respect to a 
claim and who is acting within the scope 
of the person's insurer's authority. 

(3) "Nonorisanal Manufacturer" means any 
manufacturer other than the original 
manufacturer of a part. 

(4) "Fart" means a sheet metal or plastic part 
that generally is a component of the exte- 



rior of a motor vehicle, including an inner 
or outer panel. 

(c) No insurer shall require the use of an after 
market part in the repair of a motor vehicle, even 
if such after market part bears the stamp or seal 
of approval of any testing and quality certif- 
ication organization or association, unless the aT 
ter market part is at least equal to the original 
part in terms of fh^ quality, performance and 
warranty. Insurers specifying the use of after 
market parts shall include m the estimate the 
costs of any modifications made necessary by the 
use of after market parts, and shall furnish and 
provide the insurer's written warranty that the 
specified after market parts are at least equal to 
the original part in terms of fit^ quality, pert'orm- 
ance and warranty. 

(d) E\ery insurer that writes motor vehicle in- 
surance in this State and that intends to require 
or specify the use of after market parts must dis- 
close to its policyholders in writing, either in the 
policy or on a sticker attached thereto, the fol- 
lowing information m no smaller print than ten 
point type: 

IN THE REPAIR OF YOUR COVERED 
AUTO UNDER IHE PHYSICAL DAVIAGE 
COVERAGE PROVISIONS OF THIS POE- 



ICY. WE MAY REQUlRi: OR SPECIFY 
IHE USE OF AUlOMOnil E PARIS NOT 
MADE BY IHE ORIGINAL MANUt AC- 
rURER. FHESE PARIS ARE REQUIRED 
TO BE AT LEAST EQUAL IN^ TERMS OF 
FIT. QUAI IIY. PERFORMANCE, AND 
VVARR^XNIY TO THE ORIGINAL MAN- 
UFACTURER PARTS THE\ REPLACE. 



(e) An insurer must disclose to a claimant in 
wnting, either on the estimate or on a separate 
document attached to the estimate, the following 
information in no smaller print than ten point 
type: 

THIS ESTIMATE HAS BEEN PREPARED 
BASED ON IHE USE OF AUFOMOBILE 
PARIS NOr MADE BY THE ORIGINAL 
MANUFACIURER. PARES USED IN HIE 
REPAIR OF ^OUR VEHICLE BY OFIIER 
IHAN IHE ORIGINAL MANUEACFURER 
ARE REQLIRED TO BE A I LEASF EQUAL 
IN TERXLS OF FIT. QUALITY. PERIOR.M- 
ANCE. AND \V\RRANT\ TO 1TIE ORI- 
GINAL M \NU1 ACFURER PARIS I IIE^ 
ARE REPI ACING. 



AU after market p;u1s installed on a motor vehicle 
shall be clearly identified on the estimate and in- 
voice for such repair. 

(t') Violations of this Rule that are so frequent 
as to indicate a general business practice shall be 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



130 



PROPOSED RULES 



deemed bv the Commissioner to be an unfair 
trade practice under Article 63 of General Statute 
Chapter 58. 

Statutory Authority G.S. 58-2-40. 



(fe) Aft insurer must dic . olooo te a claimant i» 
w'riting, oithor »» Ae ootimato e* »» » ooporato 
documont attached te- the ostimato, th« following 
infonnation » He f . mallor print than teft point 






.0425 DKFIMTIONS 

A* ur . ed ift t4tts Section Ae i 
b# coniitruL'd a* follovs't i : 
f44 "After mark e t part" moans a part mado by 

a nonoriginal manufacturer. 
(5^ "Insur e r" includes aft¥ person authorLt',od 

to represent tfee insurer with rospuct te a 

claim aft4 who is acting within tfee scope ©f 

the person's authority. 
(-34 "Nonoriginal manufacturer" moans afty 

manufacturer other than the original man 

ufactur e r ef a part. 
{A^ "Part" moans a shoot m e tal ef plastic part 

th*t generally i* a component »f the exterior 

ef a motor vohiclo, inoludmg aft inner Bf 

outer panel. 



'Statutory Authority G.S. 58-9. 

.0426 LIKE KIND AND QLALITY 

rv© insurer shall roquiro the e«e ef aft after 
market part i» the repair ef a motor vehicle ««- 

r^TTTTT 1 1 H^' 111 I \^' I Illlll I\.t^l 1. '\L1 I T^ HI T^TT^T l_U UllI 11^ 1 1 lU 

original part ift terms ©f frtr quality, porfonnanco 
aR4 warranty. Insurers specifying the ttse ef after 
market parts shall includ e i» the ostimato the 
costs »f aftv modifications made necessary by the 
twe ©f aft e r market parts. 

Statutory .Authority G.S. 58-9. 

.0427 DISCLOSURE REQUIREMENTS 

fa^ Fv e ry insurer that writes motor " l ehicle ift- 
suiance m this state aft4 that intends te- roquiro 
Bf specify the (*se »f after market parts must d+s- 
clos e t© it* policyholders ift ' i vnting. oithor i» the 
policy »f ©ft a sticker attached thereto, the fol- 
kusing infonnation i» ft© smaller print than teft 
point type: 

t^ 4444- RTPVIR 04^ V**t-«- CO\TRFD 
ALTO L\t:)l R 4444- PH' t .SICxr D\MAGE 
COVTRACib PROVISIONS »+- 4444^ POfc- 
\G^ Vi,* MrV¥- RLQLIRP Q^ SPLCIFY 
444+- t*+- ©+- \L rOMOB J I ! ■: PARTS Jv04^ 
MADL 4A- 444fc ORIGINAL M VNLFAC 
ILRFR. TUFSF PARIS rVR4- RFQLIRFD 
TO ftt A* [ FAST FQL.AL t^ IFR.MS Of- 
F44t QL M ha. PFRI ' ORMANCF AV» 
WARRANIA +0 44+4- ORIGINAL MAN 
LFA( ILRFR PARIS II IF\ RFPL.VCF. 



4444^ ESTIMATE HA^ BFEN PRE PARED 
B ASED ©N- 444e fe*6 ©4^ AUTOMOBILE 
P.VRLS NO* MADE R¥ 444fe OR I GINAL 
MANUFACIURER. PART S U S ED W44+fe 
REPMR 0+^ YOUR \ FIIICLE Wf OTHER 
T I 4AN 444fe ORIGINAL VLVNUFACFURER 

A n i: n r-r^i ' i r> r: r^ T'r\ n r? a -r i r: a c-t cmi r a i 

t^ TERM S 0+^F44t QU\LITY, PERFORM 
ANCE A^'rO W \RRANT\ TO 44+fe OW- 
GINAL MANLF.ACLURER PXRTS TIIEY 
AR4? REPLACING. 

I 111 LU H. I 1 1 IU.1 IVV- 1 Lnjll I J U IJ ITJllV^T ^T^T CT rT^T^^TTT T^mT^TV 

shall be clearly identified Bfi the e stimato afl4 ifi- 
' I 'oico fo* such repair. 

Statutory Authority G.S. 58-9. 

.0428 ENFORCEMENT 

Violations ©f thi* Section which are s© frequent 
a* t© indicate a general business praotico shall be 
doomed by the Commissionor t© be a» unfair 
trade practice under /Vrtiolo iA ©f General Stat 
«te Chapter -^ 

Statutory .Authority G.S. 58-9. 

.0429 COMMINGLING 

No licensed person or other person may 
commingle premiums, insurance deposits, or 
other such funds. Such funds are considered to 
have been received in a fiduciary^ capacity on be- 
half of policyowners. The funds must be ac- 
counted for in such a manner as to msure that 
the funds are separate and distinct from the per- 
son's partnership's or corporation's funds or 
personid accounts at all times. The accounting 
shall be used for premiuins paid for insurers and 
returned premiums to policvowncrs. The ac- 
counting must demonstrate that funds due to 
companies or policyholders are available at all 
times. 



Statutory Authority 
58-51-10: 58-51-15. 



G.S. 58-2-40: 58-2-195: 



.0430 RECORD RETENTION 

r\er\ agency, agent, broker or producer of re- 
cord shall maintain a file for each policy sold, and 
said file shall contain all work papers and wntten 
communications in such agency's, agent's, bro- 
ker's or producer of record's possession pert am - 
ing to the pohcv documented therein. Such file 



131 



7:2 NORTH CAROLINA REGISTER .April 15, 1992 



PROPOSED RULES 



shall be maintained and kept for a period of three 
years from the date of cancellation or termination 
of the policy. 

Statutory Authority G.S. 58-2-40; 5S-65-I05. 

.0431 CANCELLATION OR REFUSAL TO 
RENEW POLICY OF AUTOMOBILE 
INSURANCE 

The Commissioner shall consider as prima facie 
violative of G.S. 20-310 the failure by an insurer 
to comply with G.S. 20-3 10(f) when cancelling 
or refusing to renew a policy of automobile in- 
surance; for the purpose of this Rule, the phrase 
"certificate of mailing", as used in G.S. 20-310(f), 
means a certificate issued and sigyied by an em- 
ployee of and bearing the date stamp of the 
United States Postal Service. 



Statutory Authority G.S. 
58-63-15. 



20-3/0; 58-2-40; 



■k-k-k-k************** 

lyotice is hereby given in accordance with G.S. 
I50B-2I.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 1 1 NCAC 17 .0001 

- .0007. 

J. he proposed effective date of this action is July 
I, 1992. 

1 he public hearing will be conducted at 2:00 
p.m. on April 30, 1992 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 Xorth Salisbury Street, 
Raleigh. NC 276/1. 

Jxeason for Proposed Action: To provide for 
guidelines for the health insurance and .Medicare 
counseling program for senior citizens and to fa- 
cilitate the receipt of federal funds by adopting 
these rules for the program. 

\^ omment Procedures: Written comments may 
be sent to Carla Suitt, SHIIP, P.O. Box 26387, 
Raleigh, NC 276/1. Oral presentations may be 
made at the public hearing. Anyone having 
questions should call Carla Suitt at (9/9) 
733-0// 1 or Ellen Sprenkel at (919) 733-4529. 

CH.\PTER 17 - SENIORS' HEALTH 
INSURANCE INFORMATION PROGRAM 

.0001 DEFINITIONS 

As used in this Chapter: 



(1) "Counselor" means a private citizen who 
has been trained by SHIIP employees and 
is certified by SHIIP to \oluntanly provide 
counseling in accordance with this Chapter. 

(2) "Department" means the Department of 
Insurance of the State of North Carolina. 

(3) "SHIIP" means the Seniors' Health Insur- 
ance Information Program. 



(4) "SHIIP employee" means an employee of 
the Department of Insurance who is acting 
on behalf of SHIIP. 

Statutory Authority G.S. 58-2-5; 58-2-25; 
58-2-40(1); 58-54-25; 58-55-30. 

.0002 PURPOSE AND DUTIES OF SHIIP 

(a) SHIIP is established within the Department 
as a statewide health benefits counseling pro.gram 
to provide .\ledicare beneficiaries with counseling 
in .Medicare, private health insurance, and related 
health care coverage plans. 

(b) In carrying out its duties under this Chap- 
ter. SHIIP: 

Acts as a clearinghouse for information 
and materials relating to Medicare and 



(21 

(31 
(41 



health insurance. 



Develops additional information and ma- 
terials relating to Medicare and health in- 
surance, as necessary. 
Provides minimum standards and materi- 



als for training and certifying counselors. 
Provides information for health insurance 
educational activities that are conducted 
by employers, senior organizations, and 
other interested groups. 

(5) Supports, to the extent possible, additional 
emphasis on expansion of community 
educational acti\ities that would pro\ide 
for announcements on tcle\ision and in 
other media that briefly dcscnbe the na- 
ture of .Medicare. Medicare supplement 
insurance, and long-term care insurance, 
and the availability of consumer informa- 
tion and matenals under this Chapter. 

(6) Provides communit\' education on Medi- 
care. .Medicare supplement insurance, and 
long-term care insurance. 

(7) Recruits, trains, and coordinates counse- 
lors. 

(8) Assists indi\iduals and pro\ide5 informal 
advocac\ with respect to Medicare and 
health insurance benefits claims. 



Statutory- Authority G.S. 58-2-5; 58-2-25; 
5S-2-40(/); 58-54-25: 58-55-30. 

.0003 LOCATION, MAILING ADDRESS, AND 
TELEPHONE 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



132 



PROPOSED RULES 



(a) The primary' location of SHIIP is 1600 
Hillsborough Street, Raleigh, North Carolina 

27605. 



(b) Ihe mailing address of SHIIP is Post Office 
Box 263S7. RaJei.ah, North Carolina, 27611. 

(c) The telephone numbers for SHIIP are toll- 
free 1-800-443-9354 and 1-919-733-0111. 



Statutory Authority G.S. 58-2-5: 
58-2-40(1); 58-54-25; 58-55-30. 



58-2-25; 



.0004 COUNSELORS 

(a) Counselors shall not engage in the solicita- 
tion of insurance sales. Licensed insurance 
agents and employees of insurance companies are 
not ehgible for training and certification as 
counselors bv SHIIP. 



(b) No counselor shall provide counseling ser- 
vices under this Chapter unless he or she has 
been trained and certified by SHIIP. 

(c) Before providing anv counseling services, 
counselors shall disclose, in wnting, to recipients 
of counseling services pursuant to this Chapter 
that the counselors are acting in good faith to 
provide mformation about the Medicare program 
and about health insurance policies and benefits 
on a volunteer basis, but that the information 
shall not be construed to be legal advice. 



(d) Counselors shall not endorse anv particular 
insurance companv or insurance agency, agent, 
broker, brokerage tlrm, or other private provider 
of health insurance. 

(e) Counselors shall keep all consultations with 
recipients of counseUng ser\'ices confidential, ex- 
cept for tiling of reports with SHIIP employees. 



Statutory Authority G.S. 
58-54-25: 58-55-30. 



58-2-5; 58-2-40(1); 



.0005 SHIIP INQUIRIES TO INSURERS .\ND 
AGENTS 

Fver>' insurer and agent or broker, upon receipt 
of an oral or written inquiry from a SHIIP em- 
ployee, shall furnish the employee with a com- 
plete and accurate response m writing, unless the 
response is specifically authorized by the em- 
ployee to be gi\'en orally. The response must be 
made bv the insurer, agent, or broker within 
seven calendar davs after receipt of the request; 
except that the employee may extend this time 
penod in an indnidual case. 

Statuton- Authority G.S. 58-2-5; 58-2-40(1); 
58-2-/90: 58-2-/95: 58-54-25; 58-55-30. 



.0006 MEDICARE SUPPLEMENT POLICIES 

All Medicare supplement insurance pohcv 
forms that have been approved by the Life and 
Health Division of the Department are on file in 
the offices of SHIIP. Copies of these policy 
forms are a\ailable as soon as practicable after 
request therefor and payment of the copying fee 
specified in G.S. 58-6-5(3). 



Statutory A uthority 
58-6-5(3): 58-54-25. 



G.S. 58-2-5; 58-2-40(/); 



.0007 BUYER'S GUIDE 

The Guide to Health Insurance for People with 
Medicare, as published by the National Associ- 
ation of Insurance Commissioners, or anv suc- 
cessor publication, is available from SHIIP to 
consumers, free of charge. Licensed insurance 
agents and employees of insurance companies 
shall obtain this publication from the msurance 
compames bv which they are appointed or em- 
ployed. 



Statutory A uthority 
58-54-25; 58-55-30. 



G.S. 58-2-5; 58-2-40(/j; 



TITLE 15A - DEPARTMENT OF 

ENA IRONMENT, HEALTH, AND 

NATURAL RESOURCES 



No 



otice is hereby given in accordance with G.S. 
/50B-2/.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend- rule(s) 
cited as 15A SCAC /OC .0305. 

J he proposed effective date of this action is July 
1, /992. 

1 he public hearing will be conducted at 7:00 
p.m. on April 30, /992 at the South Iredell High 
School .4 uditorium, Troulman, .\'C. 

IXeason for Proposed Action: To protect the 
striped bass population in Lake Norman. 

(^ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from 
April /5, 1992 to May /5, /992. Such written 
comments must be delivered or mailed to the N .C. 
Wildlife Resources Commission. 5/2 N. Salisbury 
St.. Raleigh, NC 2'^604-l 188. 



CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY 
SUBCHAPTER IOC - INLAND FISHING REGULATIONS 



133 



7:2 NORTH CAROLINA REGLSTER .April 15, 1992 



PROPOSED RULES 



SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and 
creel and size limits are as indicated in the following table: 



GAME FISHES 


DAILY CREEL 
LIMITS 


MINIMUM 
SIZE LIMITS 


OPEN SEASON 


Mountain Trout: 
Wild Trout 
Waters 


4 


7 in. 
(exc. 15) 


All year 
(exc. 2) 


Hatchery Sup- 
ported Trout 
Waters 


7 


None 


All year, except 
March 1 to 7:00 a.m. 
on first Saturday 
in April 
(exes. 2 & 3) 


Muskellunge 
and Tiger Musky 


2 


30 in. 


ALL YEAR 


Chain Pickerel 
■ (Jack) 


None 


None 


ALL YEAR 


Walleye 


8 

(exes. 9 & 10) 


None 
(exc. 9) 


ALL YEAR 


Sauger 


8 


15 in. 


ALL YEAR 


Black Bass: 
Largemouth 


5 

(exc. 10) 


14 in. 
(exes. 4, 
8& 11) 


ALL YEAR 

(exc. 13) 


Smalknouth 
and Spotted 


5 

(exc. 10) 


12 in. 
(exes. 4, 
8& 11) 


ALL YEAR 


White Bass 


25 


None 


ALL YEAR 


Sea Trout (Spot- 
ted or Speckled) 


None 


12 in. 


ALL YEAR 


Flounder 


None 


Bin. 


ALL YEAR 


Red drum (channel 
bass, red fish, 
puppy drum) 


None 


14 in. 


ALL YEAR 


Striped Bass 
and their hybrids 
(Morone Hybrids) 


8 aggregate 
(exes. 1 & 6) 


16 in. 
(exes. 1, 
6& 12) 


ALL YEAR 

(exes. 6& 16) 


Kokanee Salmon 


7 


None 


ALL YEAR 


Panfishes 


None 


None 


ALL YEAR 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



134 



PROPOSED RULES 



(exes. 5 & 14) (exc. 14) (exc. 5) 

NONGAME FISHES None None ALL YEAR 

(exc. 7) 

(b) Exceptions 

(1) In the Dan River upstream from its confluence with Bannister River to the Brantly Steam Plant 
Dam, aft4 in John H. Kerr, Gaston, and Roanoke Rapids Reservoirs, and Lake Norman, the 
creel limit on striped bass and Morone hybrids is four in the aggregate and the minimum size 
limit is 20 inches. 

(2) In designated public mountain trout waters the season for taking all species offish is the same 
as the trout fishing season. TTiere is no closed season on taking trout from Nantahala River and 
all tributaries (excluding impoundments) upstream from Nantahala Lake, and the impounded 
waters of power reservoirs and municipally-owned water supply reser\'oirs open to the public for 
fishing. 

(3) Under an agreement with Tennessee, the minimum size limit on trout in Caldenvood Reser\oir 
is seven inches. 

(4) Bass taken from streams designated as public mountain trout waters or from Caldenvood Res- 
en.oir may be retained without restriction as to size limit. 

(5) On Mattamuskeet Lake, special federal regulations apply. 

(6) In the inland fishing waters of Cape Fear, Neuse and Tar Rivers and their tributaries extending 
upstream to the first impoundment, the daily creel limit for strip>ed bass and their hybrids is one 
fish and the minimum length limit is 18 inches. In the Roanoke River up to the first 
impoundment, from July 1 through March 31 and June 1 through June 30 the daily creel limit 
for stripped bass is one fish and the minimum length limit is 18 inches: from April 1 to May 31 
the daily creel limit is three fish, no fish between the lengths of 22 inches and 27 inches may be 
retained, and the minimum length Hmit is 16 inches, except no fish may be retained in Roanoke 
River and its tributaries including Cashie, Middle and Eastmost rivers from May 1 to December 
31, 1991. 

(7) See 15A NCAC IOC .0407 for open seasons for taking nongame fishes by special devices. 

(8) The maximum combined number of black bass of all species that may be retained per day is 
five fish, no more than two of which may be smaller than the applicable minimum size limit. 
The minimum size limit for all species of black bass is 14 inches, with no exception in Lake Luke 
Marion in Moore County, in Reedy Creek Park lakes in Mecklenburg County, and in Currituck 
Sound and tributaries north of Wright Memorial Bridge; in North River and tributaries in 
Currituck and Camden Counties north of a line between Camden Point and the end of SR 1 124. 
In and west of Madison, Buncombe, Henderson and Polk Counties the minimum size limit is 
12 inches. In B. Everett Jordan Reservoir a minimum size limit of 16 inches, with no exception, 
applies to largemouth bass. In Falls of Neuse Reser\'oir, east of SR 1004, Sutton Lake and 
Tuckertown Lake no black bass between the lengths of 12 inches and 16 inches may be retained, 
and the minimum size limit for black bass is 16 inches, except that the daily creel may contain 
two black bass of less than 12 inches in length. In W. Kerr Scott Reservoir there is no minimum 
size limit for spotted bass. 

(9) A minimum size limit of 15 inches applies to walleye taken from Lake James and its tributaries, 
and the daily creel hmit for walleye is four fish in Linville River upstream from the NC 126 
bridge above Lake James. 

(10) The creel Hmit for black bass and walleye taken from Calder\vood Reservoir is 10. 

(11) The minimum size limit for all black bass, with no exception, is 18 inches in the following 
trophy bass lakes: 

(A) Cane Creek Lake in L'mon County; and 

(B) Lake Thom-A-Lex in Da\idson County. 

(12) In aU impounded inland waters and their tributaries, except those waters described in Ex- 
ceptions (1), the daily creel limit of striped bass and their hybrids may include not more than 
two fish of smaller size than the minimum size limit. 

(13) In Cane Creek Reservoir (Orange County) the season for taking largemouth bass is closed. 

(14) In Lake Tiller.", Falls Lake, Badin Lake, and Tuckertown Lake a daily creel limit of 20 fish and 
a minimum size limit of 8 inches apply to crappie. 



135 7:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



(15) In Slick Rock Creek the minimum size is 7 inches for brook trout and 10 inches for brown and 
rainbow trout. 

(16) In designated inland fishing waters of Roanoke Sound, Croatan Sound, Albemarle Sound, 
Chowan River, Currituck Sound, Alligator River, Scuppemong River, and their tributaries (ex- 
cluding the Roanoke River and Cashie River and their tributaries), striped bass fishing season 
is closed when adjacent joint or coastal fishing waters are closed to hook and line fishing for 
striped bass by the Marine Fisheries Commission. 



Statutory Authority G.S. 113-134; 113-292: 113-304; 113-305. 



■k-k-k*************** 



No 



otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Emironment, Health, and Na- 
tural Resources, Division of Radiation Protection 
intends to amend rule cited as ISA NCAC II 
.0352. 

1 he proposed effective date of this action is Oc- 
tober I, 1992. 

1 rutructions on How to Demand a Public Hear- 
ing: Any person requesting that the Radiation 
Protection Commission hold a public hearing on 
this proposed amendment must submit a written 
request by April 30, 1992. The request must be 
submitted to Richard Fry, Division of Radiation 
Protection, P.O. Box 27687, Raleigh, NC 
27611-7687. 



Ixeason for Proposed Action: This amendment 
is necessary for North Carolina licensees to be 
compatible with the US Nuclear Regulatory 
Commission's rules. The proposed text was in- 
advertently omitted by the agency when the rule 
was published in the North Carolina Register 
dated December 16, 1991. 



Co 



-omment Procedures: Written comments 
should be submitted to the Division of Radiation 
Protection, P.O. Box 27687, Raleigh, North 
Carolina 2761 1-7687. Written comments will be 
accepted until May 15, 1992. Any person re- 
questing information concerning this proposed 
amendment should contact Richard A/. Fry at 
(919) 571-4141. 



Ea 



editor's Note: This Rule has been adopted by 
the Radiation Protection Commission and is 
pending review by the Rules Review Commission 
for a proposed effective date of May 1 , 1992. 



CFrAPTER II -RADIATION PROTECTION 
SECTION .0300 - LICENSING OF RADIOACTIVE MATERIAL 

.0352 EMERGENCY PLANS 

(a) Each application to possess radioactive materials in unsealed form, on foils or plated sources, or 
sealed in glass in excess of the quantities in the table in Subparagraph (e)(1) of this Rule must contain 
either: 

(1) an evaluation showing that the maximum dose to a person off-site due to a release of radioactive 
materials would not exceed one rem effective dose equivalent or five rems to the thyroid; or 

(2) an emergency plan for responding to a release of radioactive material. 

(b) One or more of the following factors may be used to support an evaluation submitted under 
Subparagraph (a)(1) of this Rule: 

(1) the radioactive material is physically separated so that only a portion could be involved in an 
accident; 

(2) all or part of the radioactive material is not subject to release during an accident because of the 
way its is stored or packaged; 

(3) the release fraction in the respirable size range would be lower than the release fraction shown 
in Subparagraph (e)(!) of this Rule due to the chemical or physical form of the material; 

(4) the solubility of the radioactive material would reduce the dose received; 

(5) facihty design or engineered safety features in the facility would cause the release fraction to be 
lower than shown in Subparagraph (e)(1) of this Rule; 

(6) operating restrictions or procedures would prevent a release fraction as large as that shown in 
Subparagraph (e)(1) of this Rule; or 

(7) other factors appropriate for the specific facility. 

(c) An emergency plan for responding to a release of radioactive material submitted under Subpara- 
graph (a)(2) of this Rule must include the following information: 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



136 



PROPOSED RULES 



(1) brief description of the licensee's facility and area near the site; 

(2) identification of each type of radioactive materials acadent for which protective actions may 
be needed; 

(3) classification system for classifying accidents as alerts or site area emergencies; 

(4 ) identification of the means of detecting each type of accident in a timely maimer; 

(5) brief description of the means and equipment for mitigating the consequences of each type of 
accident, including those provided to protect workers on-site, and a description of the program 
for maintaining the equipment; 

(6j brief description of the methods and equipment to assess releases of radioactive materials; 

(7) brief description of the responsibilities of licensee personnel, should an accident occur, including 
identification of personnel responsible for promptly notifying off-site response organizations and 
the agency, and responsibilities for developing, maintaining, and updating the plan; 

(8) brief description of notification and coordination, to include a commitment to and a brief de- 
scription of the means to promptly notify off-site respxjnse organizations and request off-site 
assistance, includmg medical assistance for the treatment of contaminated injured on-site work- 
ers when appropriate, provided that: 

(A) a control point shall be established; 

(B) the notification and coordination shall be planned so that unavailability of some personnel, 
parts of the facifity. and some equipment wiU not pre\ent the notification and coordination: 

(C) the licensee shall also commit to notify the agency immediately after notification of the ap- 
propriate off-site response organizations, not to exceed one hour after the licensee declares an 
emergency; and 

(D) the reporting requirements in Subparagraph (c)(8) of this Rule do not substitute for or relieve 
the licensee from responsibility for complying with the requirements in the Emergency Planning 
and Community Right-to-Know Act of 1986, Title III. Public Law 99-499 or other state or 
federal reporting requirements; 

(9) brief description of the types of information on facility status, radioactive releases, and recom- 
mended protective actions, if necessary, to be given to ofi'-site response organizations and to the 
agency; 

(10) brief description of the frequency, performance objectives and plans for the training that the 
Licensee will provide workers on how to respond to an emergency, includmg any special in- 
structions and orientation tours the licensee would offer to fire, poUce, medical and other 
emergency personnel, where such training shaU: 

(A) familiarize persormel with site-specific emergency procedures; and 

(B) thoroughly prepare site personnel for their responsibilities in the event of accident scenarios 
postulated as most probable for the specific site, including the use of team training for such 
scenarios; 

(11) brief description of the means of restoring the facility to a safe condition after an accident; 

(12) brief description of pro\isions for conducting quarterly communications checks with off-site 
response organizations and biennial on-site exercises to test response to simulated emergencies 
where such provisions shaU meet the following specific requirements: 

(A) quarterly communications checks with off-site response organizations shall include the check 
and update of all necessary telephone numbers: 

(B) while participation of off-site response organizations in biennial exercises is encouraged but 
not required, the licensee shall invite off-site response organizations to participate in the biennial 
exercises; 

(C) accident scenarios for biennial exercises shall not be known to most exercise participants: 

(D) the licensee shaU critique each exercise using individuals who do not ha\e direct implemen- 
tation responsibility for the plan; and 

(E) critiques of exercises shall evaluate the appropriateness of the plan, emergency procedures, 
facilities, equipment, training of personnel, and o\erall effectiveness of the response; and 

(F) deficiencies found by the critiques in Subparagraph (c)(12)(E) of this Rule shall be corrected; 

(13) certification that the applicant has met its responsibilities under the Emergency Planning and 
Community Right-to-Know Act of 1986, litle III, Public Law 99-499. if applicable to the ap- 
plicant's activities at the proposed place of use of the radioactive material. 

(d) The hcensee shall allo\s' the off-site response organizations expected to respond in case of an ac- 
cident 60 days to comment on the licensee's emergency plan before submitting it to the agency. The 



137 7:2 AORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



licensee shall provide any comments received within the 60 day comment period to the agency with the 
emergency plan. 

(e) Quantities of radioactive material requiring consideration of the need for an emergency plan for 
responding to a release as used in this Rule and special instructions for use are: 
(1) TABLE 



RADIOACTIVE MATERIAL 

Actinium- 228 
.'\mericium-241 
Americium-242 
Americium-243 
Antimony- 124 
Antimony- 126 
Barium- 133 
Barium- 140 
Bismuth-207 
Bismuth-210 
Cadmium- 109 
Cadmium- 1 13 
Calcium-45 
Califomium-252 
. Carbon- 14 (NON CO) 
Cerium- 141 
Cerium- 144 
Cesium- 134 
Cesium- 137 
(rhlorine-36 
Chromium-51 
Cobalt-60 
(ropper-64 
Curium-242 
Curium-243 
Curium-244 
Curium-245 
r uropium- 1 52 
t'uropium-154 
r,uropium-155 
Germanium-68 
Gadolinium- 153 
Gold- 198 
Hafnium- 172 
Hafnium- 181 
Holmium-166 m 
Hvdrogen-3 
Iodine- 125 
Iodine- 131 



Indium- 1 14 m 

Indium- 192 

Iron- 55 

lron-59 

Kr\'pton-85 

Icad-210 

Manganese- 56 

Mcrcun-2()3 

Molvbdcnum-99 

Ncplunium-237 



RELEASE 


QUANTITY 


=^RACTION 


(CURIES) 


0.001 


4,000 


.001 


2 


.001 


2 


.001 


2 


.01 


4,000 


.01 


6,000 


.01 


10,000 


.01 


30,000 


.01 


5,000 


.01 


600 


.01 


1,000 


.01 


80 


.01 


20,000 


.001 


9 (20 mg) 


.01 


50,000 


.01 


10,000 


.01 


300 


.01 


2,000 


.01 


3,000 


.5 


100 


.01 


300,000 


.001 


5,000 


.01 


200,000 


.001 


60 


.001 


3 


.001 


4 


.001 


2 


.01 


500 


.01 


400 


.01 


3,000 


.01 


2,000 


.01 


5,000 


.01 


30.000 


.01 


400 


.01 


7,000 


.01 


100 


.5 


20,000 


.5 


10 


.5 


10 


.01 


1,000 


.001 


40,000 


.01 


40,000 


.01 


7,000 


1.0 


6,000,000 


.01 


8 


.01 


60,000 


.01 


10,000 


.01 


30,000 


.001 


2 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



I3S 



PROPOSED RULES 



Nickel -63 

Niobium-94 

I'hosphorus-32 

Phosphorus-33 

t\ilonium-210 

Potassium-42 

Promethium-145 

Promethjum-147 

Ruthenium- 106 

Samanum- 151 

Scandium-46 

Selcmum-75 

Silver- 110 m 

Sodium-22 



Sodium-24 

Strontmm-89 

Strontium-90 

Sulfur-35 

Technetium-99 

Technetium-99 m 

Tellurium- 127 m 

Tellurium- 129 m 

Terbium- 160 

ThuHum-170 

Tin- 113 

Tin- 123 

Tin- 126 

Titanium-44 

Vanadium-48 

Xenon- 133 

Yttrium-91 

Zinc-65 

Zirconium-93 

ZircorLium-95 

Any other beta-gamma emitter 

Mixed fission products 

Mixed corrosion products 

Contaminated equipment beta-gamma 

Irradiated matenal. any form other than 

solid noncombustible 
Irradiated material, solid noncombustible 
Mixed radioactive waste, beta-gamma 
Packaged mixed waste, beta-gamma 
.Ajiy other alpha emitter 
Contaminated equipment, alpha 
Packaged waste, alpha 



m 

m 
m 
m 
m 
m 
m 
m 
m 
m 
m 
m 

.01 

.01 

.5 

.01 

.01 

.01 

.01 

.01 

.01 

.01 

.01 

.01 

.01 

.01 

i.o 

.01 

.01 
.01 
.01 
.01 
.01 
.01 
.001 

.01 

.001 

.01 

.001 

.001 

.0001 

.0001 



20,000 

300 

100 

1.000 

10 

9.000 

4,000 

4.000 

200 

4.000 

3.000 

10,000 

IJ)00 



9.000 

10.000 

3,000 

90 

900 

10,000 

400,000 

5,000 

5,000 

4,000 

4,000 

10,000 

3,000 

1,000 

100 

7,000 

900,000 

2,000 

5,000 

400 

5.000 

10,000 

1,000 

10,000 

10,000 

1.000 

10,000 

1,000 

10,000 
~l 

20 
20 



(2) For combinations of radioactive materials, consideration of the need for an emergency plan is 
required if the sum of the ratios of the quantity of each radioactive material authorized to the 
quantity listed for that material in the table in Subparagraph (e)(1) of this Rule exceeds one. 

(3) Waste packaged in Type B containers, as defmed m 10 CFR Part 71.4, does not require an 
emergency plan. 

Statutory Authority G.S. I04E-7: 104E-1S. 



139 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



****************** 



J\ otice is hereby given in accordance with G.S. 
150B-21.2 that DEHNR - Division of 
Epidemiology intends to amend rule(s) cited as 
ISA NCAC I9H .0401 - .0403, .0601, .0903. 

1 he proposed effective dale of this action is July 
1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on May 12, 1992 at the Norton Board Room, 
6th Floor Cooper Memorial Building, 225 N. 
McDowell Street, Raleigh, N.C. 

J\easons for Proposed Actions: 

ISA NCAC 19H .0401 - .0403 - to increase the re- 
quirements for filing delayed birth certificates for 
minor children. 

ISA NCAC 19H .0601, .0903 - to eliminate infor- 
mation concerning amendments to a certificate 
from a certified copy. 



Co 



-omment Procedures: Any person requiring 
additional information concerning the proposed 
rules should contact Helen A. Simmons, Vital 
Records Section, P.O. Box 29537, Raleigh, NC 
27626-0537, (919) 733-3000. Written comments 
on these rules may be sent to Ms. Simmons at the 
above address, or submitted at the public hearing. 
If you desire to speak at the public hearing, notify 
Ms. Simmons at least 3 days prior to the public 
hearing. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER I9H - VITAL RECORDS 

SECTION .0400 - DELAYED REGISTRATION 
OF BIRTHS 

.0401 GENERAL REQUIREMENTS 

All certificates registered one or more years after 
the date of birth are to be registered on a Delayed 
Certificate of Birth Form prescribed by the State 
Registrar. Any living person bom in this state 
whose birth is not recorded, or his parent, or 
guardian nert ef kiftr ef older person acting fof 
tiie registrant may apply to the register of deeds 
in the county of birth on a form prescribed by the 
State Registrar. Such completed application 
form shall be retained by the register of deeds. 

Statutoty Authority G.S. l30A-92(7). 



.0402 DOCLIIVIENTARY EVIDENCE: FACTS 
TO BE ESTABLISHED 

(a) The minimum facts which must be estab- 
lished by documentary evidence shall be: 

(1) the full name of the person at the time of 
birth; 

(2) the date and place of birth; 

(3) the full maiden name of the mother; and 

(4) the full name of the father, except for 
births out of wedlock. 

Documents presented, other than personal affi- 
davits, to establish these facts must be from in- 
dependent sources and shall be in the form of the 
original record or a duly certified copy thereof or 
a signed statement from the custodian. These 
documents must have been estabhshed at least 
five years prior to the date of application. 
However, documents estabhshed less than five 
years prior to date of application shall be ac- 
cepted if created prior to the apphcant's fifth 
birthday. 

(b) An affidavit of personal knowledge, to be 
acceptable, must be signed by one of the parents, 
or a person older than the registrant having 
knowledge of the facts of birth before an official 
authorized to administer oaths. 

(c) For applicants 1 to 1 1 years old, two pieces 
of documentary evidence are required, only one 
of which may be an affidavit. Both records must 
prove name, aH4 date of birth, A4- loaot eR« must 
prov e parentage, and »«» must prov e place of 
birth. 

(d) For applicants 12 and over, three pieces of 
evidence are required, only one of which may be 
an affidavit. All three must prove name and date 
of birth, two must prove place of birth, and one 
must prove parentage. 

(e) All evidence shall be abstracted or included 
with the application and must be signed by the 
appropriate official. The application and affida- 
vits of personal knowledge shall be retained by 
the register of deeds for one year. Other sup- 
porting documents may be returned to the ap- 
pUcant up>on completion of the certificate. 

Statutory Authority G.S. l30A-92(7). 

.0403 COMPLETION OF THE CERTIFICATE 

(a) Upon proper submission of apphcation and 
supporting evidence, the register of deeds shall 
abstract on the delayed certificate of birth a de- 
scription of each document submitted to support 
the facts shown on the delayed birth certificate. 
The description shall include: 

(1) the title or description of the document; 

(2) the name and address of the affiant, if the 
document is an affidavit; or of the custo- 
dian, if the document is an original or 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



140 



PROPOSED RULES 



certified copy of a record or a signed 
statement; 

(3) the date of the original filing of the docu- 
ment being abstracted; and 

(4) the information regarding the birth facts 
supported by the document. 

(b) Each delayed certificate of birth shall be 
signed and sworn to before an official authorized 
to administer oaths by the person whose birth is 
to be registered if such person is 18 years of age 
and is competent to sign. Otherwise, the certii~- 
icate shall be signed and swom to by »«« »f tb* 
foUo' . ' i ing m the indicated ordijr ef priority: 
f4-} one of the parents or guardians of the regis- 
trant. 

(-if Ae fte^ ef kift ei tj^ njgiotrant, &f 
f^ afty other older peroon basing peroonal 
loiowledge ef the facts ef birth. 

Statutory Authority G.S. l30A-92(7). 

SECTION .0600 - CERTIFIED COPIES 

..0601 BIRTH CERTIFICATES 

(a) There shall be three forms of copies of birth 
certificates: 

(1) a photocopy of the original record ex- 
cluding medical and health related infor- 
mation with facsimile of the signature of 
the State Registrar and raised seal and 
date issued; and 

(2) a typed copy prepared on a form printed 
on safety paper with facsimile of the sig- 
nature of the State Registrar and raised 
seal; the form shall provide at least the 
following items of information: 

(A) name and sex of child; 

(B) date and place of birth; 

(C) names, ages (at time of birth), and 
birthplaces of father and mother; 

(D) date fded with local registrar; 

(E) certificate number; and 

(F) date of issue; and 

\ "^J / 1 H_ 1 1 I ..* LllIIV-lIU V^J- (-LI lU UUIV \Ji \Xl.lT.\-H\Jil\\~ III , 

(3) a typed wallet -size card with facsimile of 
the signature of the State Registrar pro- 
viding as a minimum the following items 
of information: 

(A) name and sex of child; 

(B) date and place of birth; 

(C) date filed with local registrar; 

(D) certificate number; 

(E) date of issue; and 

(F) changes of names by court order noted 
on back for persons older than 15 years 



unless good cause is shown for deleting 
the notation. 

(b) .A wallet-size card shall be issued when 
specifically requested. 

(c) A typed copy shall be issued when specif- 
ically requested, when the original certificate 
cannot be photocopied, when the original has 
been corrected or amended, or when the record 
is that of an adopted or legitimated person. 

(d) A photocopy shall be issued when specif- 
ically requested or whenever it is most con\en- 
ient except in cases in which a typed copy is 
required. 

(e) In cases when the individual is known to 
be deceased, the word "DECEASED" shall be 
added to the certificate in a prominent location. 
Ihis procedure shall apply to copies issued by 

the Vital Records Section and to each register of 
deeds or local health department that issues cer- 
titied copies of birth certificates. 

Statutory Authority G.S. l30A-92(7). 

SECTION .0900 - CORRECTIONS AND 
AMENDMENTS 

.0903 CORRECTIONS REQUIRING PROOF 

The following items may be corrected upon 
written request on forms prescribed by the State 
Registrar properly notarized and signed by the 
registrant if of legal age or by one or both parents 
or guardians of a minor child provided that the 
request is supported by at least one piece of 
documentary evidence: 

(1) state of birth (deaths), 

(2) birthplace of parents (births), 

(3) county of birth, 

(4) speUmg of given names of child (births) af- 
ter four years of birth, 

(5) speUmg of father's or mother's name, 

(6) age of parents, 

(7) sex of child if incorrectly recorded, 

(8) date of birth, and 

(9) hour of birth. 

P©f th e o e corrcctionG, a.scept se* ©f child aft4 
hour ef birth, tl*e certificate ' : ' &haU be marked 
"am e nd e d" »!t shall certified copies subsequently 
issued. All available evidence including any 
which might not have been submitted by the 
applicant shall be evaluated by the State 
Registrar. The existence of inconsistent or con- 
flicting evidence may be considered cause for de- 
nying any request for correction in which case the 
applicant shall be duly ad\ ised. 

Statutory Authority G.S. l30A-92(7). 



141 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



PROPOSED RULES 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

Jy otice is hereby given in accordance with G.S. 
I50B-21.2 that the Division of Motor Vehicles in- 
tends to adopt rule(s) cited as I9A NCAC 3B 
.0801. 

1 he proposed effective date of this action is July 
I, 1992. _ _ 

1 nstructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice) : The agency will schedule a public hear- 
ing on the proposed rule if it receives a written 
request for a hearing within 15 days from the date 
the proposed text is published. The request for 
hearing should be mailed to: William R. Stout, 
Motor Carrier Safety Unit, Division of Motor 
Vehicles, 1 100 New Bern Avenue, Raleigh, NC 
27697. 

IXeason for Proposed Action: To further define 
gross vehicle weight rating in the absence of the 
manufacturer' s label. 



Co 



omment Procedures: Written comments on 
the proposed rule may be submitted by mailing the 
comments to the following address within 30 days 
after the proposed text is published or until a 
public hearing is held, whichever is longer: 
William R. Stout, Motor Carrier Safety Unit, 
J J 00 New Bern Avenue. Raleigh, NC 27697. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SI BCHAPTER 3B - DRIVER LICENSE SECTION 

SECTION .0800 - GROSS VEHICLE WEIGHT 
RATING (GV"VVR) 

.0801 DEFINITION 

The \-alue specified by the manufacturer as the 
ma.ximum loaded weight of a vehicle. The 
GVWR of a combination vehicle is the GVWR 
of the power unit plus the GVAVR of the towed 
unit or units. In the absence of the manufactur- 
er's GVWR label affixed to the vehicle, the reg- 
istered weight or the actual weight, whichever is 
greater, shall be the GVWR. 



ly otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Division of Motor Vehicles in- 
tends to amend rule(s) cited as 19A NCAC 3D 
.0515. 

1 he proposed effective date of this action is July 
I, 1992. 

1 nstructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice) : The agency will schedule a public hear- 
ing on the proposed rule if it receives a written 
request for a hearing within 15 days from the date 
the proposed text is published. The request for 
hearing should be mailed to: B.C. Bristle, 
Enforcement Section, Division of Motor Vehicles, 
1100 New Bern Avenue, Raleigh, NC 27697. 

iXeason for Proposed Action: To establish the 
duration of a suspension or revocation of a Safety 
Equipment or Safety Equipment Exhaust Emis- 
sions Inspection Station License based upon a 
point system. 



Co 



Statutory Authority G.S. 20-37.22. 



•k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k 



omment Procedures: Written comments on 
the proposed rule may be submitted by mailing the 
comments to the following address within 30 days 
after the proposed text is published or until a 
public hearing is held, whichever is longer: E.C. 
Bristle, Enforcement Section, Division of Motor 
Vehicles, 1 100 New Bern Avenue, Raleigh, NC 
27697. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SLBCHAPTER 3D - ENFORCEMENT SECTION 

SECriON .0500 - GENERAL INFORM.ATION 

REGARDING SAFETY INSPECTION OF 

MOTOR VEHICLES 

.0515 SAFETY INSPECTION LICENSING 
AND PROCEDIRES 

(a) The Director of the Office of Administrative 
I learings has determined that publication of the 
complete regulations governing hcensing as a 
North Carolina Safety Equipment Inspection 
Station, and the requirements and procedures for 
such inspections are impracticable, and that the 
substance of this Rule should be summarized in 
accordance with the provisions of Gr^ 
150B 63(c). 26 NCAC 2A .0207. 

(b) The regulations and procedures go\eming 
the licensing of Safety Equipment Inspection 
Stations for all counties are contained in a man- 
ual entitled "Safety Equipment Emission In- 
spections, Windshield Certificate Replacement 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



142 



PROPOSED RULES 



Regulations Manual," as amended July \^ 1992. 



This manual includes all procedures and forms 
to be used in the process of the safety inspection 
required by law. 

(c) Official copies of these manuals are avail- 
able upon request from the Enforcement Section, 
Division of Motor Vehicles, Department of 
Transportation, 1100 New Bern Avenue, 
Raleigh, N.C. 27697. 

Statutory Authority G.S. 20-1; 20-117. 1(a): 
20-122: 20-122.1: 20-123.1: 20-124: 20-/25: 
20-125.1: 20-126; 20-127; 20-128; 20-128.1; 
20-129; 20-129.1; 20-130; 20-130.1; 20-130.2; 
20-130.3; 20-131 through 20-134; 20-183.2; 
20-183.3; 20-183.4: 20-183.5; 20-183.6; 20-183.7; 
20-183.8. 

•k-k'k-k-k-k-k-k-k'k-k^-k'k-k'k-k-k 



No 



otice is hereby given in accordance with G.S. 
150B-2I .2 that the Division of Motor Vehicles in- 
' tends to amend rule(s) cited as 19A NCAC 3D 
.0801. 



Th 



he proposed effective date of this action is July 
1. 1992. 

1 nstructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice) : The agency will schedule a public hear- 
ing on the proposed rule if it receives a written 
request for a hearing within 15 days from the date 
the proposed text is published. The request for 
hearing should be mailed to: William A. Cox, 
Drti'er License Section, 1 100 Sew Bern Avenue. 
Raleigh. NC 27697. 

I\eason for Proposed Action: 19A NCAC 3D 
.080/ (b)(2) states the Division's Exemption Re- 
view Officer may approve anyone for a commercial 
drivers license when they fail to meet the Federal 
Motor Carrier Safetv Regulations Part 
391.ll{b){l) and 39l.4l{b)(r) through (II), 
provided they meet our State Standards. It is 
requested that this regulation continue to allow 
this Authority indefinitely. 



Cc 



ornment Procedures: 
the proposed rule may be 
comments to the followin 
after the proposed text 
public hearing is held, 
William A. Cox, \C Di\ 
Dri\er License Section, 
Raleigh. .\ort/i Carolina 



Written comments on 

submitted by mailing the 

g address within 30 days 

is published or until a 

whichever is longer: 
ision of Motor Vehicles, 
1 100 A'evv Bern Avenue, 
27697. 



LLdito/s Mote: This Rule has been filed as a 
temporary rule effective March 30, 1992 for a 
period of 180 days to expire on September 26, 
1992. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SUBCHAPTER 3D - ENFORCEMENT SECTION 

SECTION .0800 - SAFETV RULES AND 
REGULATIONS 

.0801 SAFETY OF OPERATION AND 
EQUIPMENT 

(a) The rules and regulations adopted by the 
U.S. Department of Transportation relating to 
safety of operation and equipment (49 CFR 
Parts 390-398 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carriers, 
while engaged in interstate commerce over the 
highways of the State of North Carohna. 

(b) The rules and regulations adopted by the 
U.S. Department of Transportation relating to 
safety of operation and equipment (49 CFR 
Parts 390-398 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carrier ve- 
hicles engaged in intrastate commerce over the 
highways of the State of N'oith Carolina if such 
vehicles have a GVWR of greater than 26,000 
pounds; are designed to transport 16 or more 
passengers, including the driver; or transport 
hazardous materials required to be placarded 
pursuant to 49 CFR 170-190. Provided, the 
following exceptions shall also apply to all intra- 
state motor carriers: 

(1) An intrastate motor carrier driver may not 
dri\e more than 12 hours following eight 
consecutive hours off duty; or for any pe- 
riod iiftcr having been on duty 16 hours 
following eight consecuti\e hours off duty; 
or after having been on duty 70 hours in 
seven consecutive days; or more than 80 
hours in eight consecutive days. An 
intrastate driver will be determined by his 
previous seven days of operation. 

(2) Persons who otherwise qualify medically 
to operate a commercial motor veliicle 
within the State of North Carolina will be 
exempt from the provisions of Part 
391.11(b)(r) and Part 391.41(b)(1) 
through (11) and therefore will be au- 
thorized for intrastate operation if licun i' L'd 
prior to March ^ I9Q2. afe approved by 



143 



'-•2 NORTH CAROLINA REGLSTER .April 15. 1992 



PROPOSED RULES 



an Exemption Review Officer appointed 
by the Commissioner of Motor Vehicles. 
aH4 moot ali oth e r roquiroments ef tbtt 
Soction. These drivers shall continue to 
be exempt upon completion of a biennial 
medical examination indicating the condi- 
tion has not worsened or no new disqual- 
ifying conditions have been diagnosed and 
upon continued approval of an Ex- 
emption Review Officer, 
(c) The rules and regulations adopted by the 
U. S. Department of Transportation relating to 
inspection, repair and maintenance of motor ve- 
hicles (49 CFR Part 396.17 through 396.23 and 
including Appendix G, and amendments thereto) 
shall apply to all for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carrier ve- 
hicles engaged in intrastate commerce over the 
highways of the State of North Carolina if such 
vehicles have a GVWR of greater than 10,000 
pounds. Provided, any farm vehicle shall be ex- 
empt from the requirements of this Paragraph if: 
. (1) It is being operated by a farmer (or a per- 
son under the direct control of the farmer) 
as a private motor carrier of property; 

(2) It is being used to transport either: 

(A) agricultural products, or 

(B) farm machinery, farm supplies, or both, 
to and from a farm; 

(3) It is being operated solely within this State 
and within 150 air-miles of the farmer's 
farm; 

(4) It is not being used in the operation of a 
for-hire motor carrier; and 



(5) It is not carrying hazardous materials of a 
type or quantity that requires the vehicle 
to be placarded in accordance with 49 
CFR 177.823. 
(d) Every motor vehicle registered or required 
to be registered in North Carolina and subject to 
the inspection requirements of the Federal Motor 
Carrier Safety Regulations (49 CFR Part 396) 
must display a current approved federal in- 
spection certificate when operated on the streets 
and highways of this State. On self-propelled 
vehicles the inspection certificate shall be located 
on the outside of the driver's door exclusive of 
the window or rear view mirror. On trailers and 
semitrailers, the inspection certificate shall be lo- 
cated on the left side as near as possible to the 
outside lower front of the vehicle. The in- 
spection certificate shall contain at least the fol- 
lowing legible information: 

(1) The date of inspection; 

(2) Ncime and address of the motor carrier or 
other entity where the inspection report 
required by 49 CFR 396.21(a) is main- 
tained; 

(3) Information uniquely identifying the ve- 
hicle inspected if not clearly marked on 
the vehicle; and 

(4) A certification that the vehicle has passed 
an inspection in accordance with 49 CFR 
396.17. 

Statutory Authority G.S. 20-37.22; 20-I83.2(aJ; 
20-384. 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



144 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
l43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. I43B-30.2(d). 



AGRICULTURE 



Plant Industry 

2 A'C-J C 48E .0101 - Definitions 
Agency Revised Rule 
Agency Responded 
Agency Withdrew Rule 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

I4A NCAC9H .0304 - Notifying Registered Chiner 
No Response from Agency 
Agency Withdrew Rule 

ECONOMIC AND CO>LMlAIT\ DEVELOPMENT 

Credit Union Division 

4 NCAC 6C .0407 - Business Loans 
Agency Revised Rule 

ENA IRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

/5A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 

.'igency Responded 

Rule Returned to Agency 

Agency Filed Rule with OA H 
15A NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OA H 
/5A NCAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to .igency 

.4gency Filed Rule with 0.4 H 
1 5.4 NC.4C 7 J .0402 - Criteria for Grant or Denial of Permit .4pplications 
ISA NCAC 7M .0201 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Ride with OAH 



RRC Objection I Oj 17191 

RRC Objection I0II7I91 

No Action 12/19/91 

02/20/92 



RRC Objection 12/19/9/ 

No Action 01/24/92 

02/20/92 



RRC Objection 01/24/92 
Obj. Removed 02/20/92 



RRC Objection 
No .Action 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 
RRC Objection 
No .Action 
No Action 

Eff 



01/24/92 
01/24/92 
01/24/92 
03/01,92 
02/20,92 
03/19/92 
03/31/92 
03/19,92 
03/19,92 
04/01/92 
02/20/92 
03/19,92 
03/31/92 
03/19/92 
03/19,92 
04/0//92 
10/17/91 
10/17191 
12/19,91 
01/24.92 
01/24,92 
03/01,92 



145 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



RRC OBJECTIONS 



ISA NCAC 7M .0202 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7M .0303 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7M .0403 - Policy Statements 

Agency Responded 

Agency Responded 

Agency Revised Rule 
ISA NCAC 7M .0901 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 

Environmental Management 

ISA NCAC 2E .0107 - Delegation 
Agency Revised Rule 

Governor's Waste Management Board 

/SA NCAC MB .0002 - Definitions 
Agency Revised Rule 

Sedimentation Control 

ISA NCAC 4 A .0005 - Definitions 

Agency Responded 

Agency Revised Rule 
ISA NCAC 4C .0007 - Procedures: Notices 

Agency Responded 



RRC Objection 


/0//7I9J 


No Action 


J 2/ J 9/ 9 J 


No Action 


01 124192 




0II24I92 


Effi 


03101192 


RRC Objection 


I0il7i9l 


No A ction 


12119191 


No Action 


01124192 




01124192 


Effi 


03/01/92 


RRC Objection 


10/17/91 


No Action 


12/19/91 


No Action 


01/24/92 


Obj. Removed 


02/20/92 


RRC Objection 


10/17/91 


No Action 


12/19/91 


No A ction 


01/24/92 




01/24/92 


Effi 


03/01/92 


RRC Objection 


03/19/92 


Obj. Removed 


03/19/92 


RRC Objection 


03/19/92 


Obj. Removed 


03/19/92 


RRC Objection 


12/19/91 


No Action 


01/24/92 


Obj. Removed 


02/20/92 


RRC Objection 


12/19/91 


No Action 


01/24/92 


Obj. Removed 


02/20/92 



HUMAN RESOURCES 



FacUity Services 



10 NCAC 3 J .290S - Personal Hygiene Items 
10 NCAC 3U .0102 - Defimitions 
Agency Revised Rule 



RRC Objection 10; 17/91 
RRC Objection 03/19/92 
Obj. Removed 03/19/92 



Individual and Family Support 



10 NCAC42E .090S - Personnel: Centers: Homes with Operator/ Stafifi RRC Objection 

Agency Responded No Action 

Agency Raised Rule Obj. Removed 

10 NCAC 42E .0906 - Personnel: Day Care Homes:/ Stafifi Person/Op RRC Objection 

Agency Responded No A ction 

Agency Revised Rule Obj. Removed 

10 NCA C 42E . 1207 - Procedure RRC Objection 

Agency Responded No Action 



01/24/92 
02/20/92 
03/19/92 
01i24!92 
02/20/92 
03/19/92 
01/24/92 
02/20/92 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



146 



RRC OBJECTIONS 



Agency Revised Rule 
JO XCAC 42Z .0604 - Staff Requirements 

Agency Responded 

Agency Re\ised Rule 
JO XCAC 42Z .090 J - Procedure 

Agency Responded 

Agency Revised Rule 

Mental Health: General 

JO NCAC J4S .0102 - Communication Rights 

Agency Responded 
JO NCAC J4S .0J03 - Living Emironment 

Agency Responded 

LICENSING BOARDS AND COMMISSIONS 

Certiiied Public Accountant Examiners 



Obj. Removed 
RRC Objection 
No A ction 
Obj. Removed 
RRC Objection 
No A ction 
Obj. Removed 



03il9;92 
01 1 24 92 
02:20.92 
03 ,19: 92 
0J.24 92 
02 20 92 
03,19 92 



ARRC Objection 9IJ9j9J 

10117191 

ARRC Objection 9IJ9I9I 

J0:J7,9J 



* 2 J NCAC8G .03 J 3 
Agency Responded 



Firm Name 



RRC Objection 10 17:9 J 
No Action J2iJ9i9J 



147 



NORTH CAROLINA REGISTER April 15, 1992 



RULES INVALIDA TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



25 NCA C IB .0414 - SITU A TIONS LW WHICH A TTORNEYS FEES MA Y BE A WARDED 

Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings, 
declared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. University 
of North Carolina at Chapel Hill, Respondent (91 OSP 0905). 



7:2 NORTH CAROLINA REGISTER April 15, 1992 I4S 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under 
North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index 
and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of Mortuary Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distribution Child Support 

DHR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EUR 

ESC 
HAF 

HRC 

IND 

INS 

LBC 

MLK 

NHA 

OAH 

OSP 

PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Fluman Relations Commission 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administra- 
tors 

Office of Administrative Hearings 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry' Examiners 
Department of Secretary of State 
Board of Examiners of Speech and 
Language Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


.\lyce W. Pnngle 

V. 

Department of Education 


88 OSP 0592 
8S EEO 0992 


Morgan 


03 27 92 


Susie Woodle 

V. 

Department of Commerce, State Ports Authority 


88 OSP 1411 


Mann 


03 25 92 


Fernando Demeco White 

V. 

DHR, CasweU Center 


89 OSP 0284 


West 


01 10 92 


Cathy Faye Barrow 

V. 

DHR, Craven County Heahh Department 


89 DHR 0715 


Morgan 


03 09 92 


Kenneth W. White 

v. 
Employment Security Commission 


90 OSP 0390 


Bccton 


01 13 92 



149 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 





CASE NAME 


CASE 
NUMBER 


AU 


FILED 
DATE 


Craig S. Eury 

V. 

Employment Security Commission 


90 OSP 0391 


Becton 


01/1 3; 92 


Jolene H. Johnson 

V. 

DHR, Division of Medical Assistance 


90 DHR 0685 


Morgan 


02/21/92 


Sgt. Carl Edmunds 

V. 

DHR, Division of Social Services, CSE 


90 CSE 1135 


Nesnow 


02/04/92 


Rafael Figueroa 

V. 

DHR, Division of Social Services, CSE 


90 CSE 1138 


Morgan 


03/30/92 


Sammie L. Frazier 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1167 


Morgan 


03/24/92 


Richard A. Boyett 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1184 


Morgan 


03/30/92 


Lance McQueen 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1204 


Morgan 


03/30/92 


Kermit Linney 

V. 

Department of Correction 


90 OSP 1380 


Morrison 


02/12/92 


Jerry Odell Johnson 

V. 

Sheriffs' Education & Training Standards Comm 


90DOJ 1411 


Morgan 


01/09/92 


Stoney W. & Darlene L. Thompson 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0003 


West 


01/06/92 


Gloria Jones/ Medbill 

V. 

Children Special Health Services 


91 EHR 0142 


Morgan 


03/11,92 


Thomas Such 

v. 

EHR and William W. Cobey Jr. 


91 OSP 0202 


Becton 


02/20/92 


N.C. Human Relations Comm. on behalf of Deborah Allen 

V. 

Charles Watkins 


91 HRC 0204 


Morrison 


03/17/92 


Cindy Gale Hyatt 

V. 

Department of Human Resources 


91 DHR 0215 


Morgan 


02/27/92 


Gliston L. Morrisey 

V. 

Bd of Trustees/Teachers' & St Emp Retirement Sys 


91 DST 0232 


West 


02/03/92 


Anthony Caldwell 

V. 

Ju\enile Evaluation Center 


91 OSP 0259 


Morgan 


03/12 92 





7:2 NORTH CAROLINA REGISTER April 15, 1992 



150 



CONTESTED CASE DECISIONS 



CASE NAME 


C.\SE 
>LMBER 


AEJ 


FILED 
DATE 


Kenneth R. Downs, Guardian of 
Mattie M. Greene 

V. 

Teachers' & St Emp Comp Major Medical Plan 


91 DST0261 


Gray 


02/20; 92 


Deborah W. Clark 

V. 

DHR, Dorothea Dix Hospital 


91 OSP 0297 


Nesnow 


01/16/92 


Wade R. Bolton 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0312 


Mann 


01/14,92 


Betty L. Rader 

V. 

Teachers' & St Fmp Major Medical Plan 


91 DST0330 


Morgan 


01/10/92 


Marcia Carpenter 

V. 

UNC - Charlotte 


91 OSP 0346 


Mann 


03/12,92 


James /\rthur Lee 

V. 

NC Crime Victims Compensation Commission 


91 CPS 0355 


Chess 


03,05/92 


Michael Danvin White 

V. 

Department of F.nvironment, Health, & Natural Resources 


91 OSP 0413 


Morrison 


02/14,92 


Curtis Wendell Bigelow 

V. 

CCPS, Division of State Highway Patrol 


91 OSP 0418 


West 


03,10,92 


AlcohoUc Beverage Control Commission 

V. 

Hilsinger Pnterprises. Inc., t a The Waterin Hole 


91 ABC 0442 


Gray 


01/10,-92 


Penny Whitfield 

V. 

['itt County Mental Health Center 


91 OSP 0465 


Gray 


01/08/92 


Senior Citizens' Home Inc. 

V. 

DHR. Di%ision of Facility Ser\-ices, Licensure Section 


91 DHR 0467 


Gray 


02,18,-92 


Alcoholic Beverage Control Commission 

V. 

Everett Lee Williams Jr., t a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01/31/92 


Jonathan Russell McCravey, t a Encore 

v. 
.Alcoholic Be\erage Control Commission 


91 ABC 0534 


Morrison 


02/04/92 


Horace Bntton Askew Jr. 

v. 

Sheriffs' Education & Training Standards Comm 


91 DOJ 0610 


Reilly 


01/22/92 


Roy L. Keever 

V. 

Department of Correction 


91 OSP 0615 


West 


02,26 92 



151 



7:2 NORTH CAROLINA REGISTER April 15. 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


AU 


FILED 
DATE 


Larry Madison Chatman, t/a Larry's Convenient Store 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0626 


Gray 


02/20/92 


Cecil Leon Neal 

V. 

Department of Economic & Community Development 


91 OSP 0648 


Mann 


02/07/92 


DAG, Food & Drug Protection Div, Pesticide Section 

v. 
D. Carroll Vann 


91 DAG 0654 


Morrison 


01/15/92 


Kidd's Day Care and Preschool 

v. 

Child Day Care Section 


91 DHR 0666 


Becton 


03/25/92 


Mary Tisdale 
Hyde County Health Department and EHR 


91 EHR 0679 


Morgan 


03/23/92 


Alcoholic Beverage Control Commission 

v. 

Kenneth Richard Cooper, t/a Silvers 


91 ABC 0680 


Becton 


02/26/92 


Sarah Linda Hankins 

V. 

/VlcohoUc Beverage Control Conunission 


91 ABC 0688 


Mann 


02/27/92 


Keith HuU 

V. 

DHR - Division of Medical Assistance 


91 DHR 0707 


Chess 


02/27/92 


John E. Canup 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


Reilly 


01/13/92 


Falcon Associates, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01/06/92 


Michael F. Stone 

v. 

Bd of Trustees/ Local Gov't Emp Retirement Sys 


91 DST 0771 


West 


02/24/92 


Ruben Gene McLean 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01/30/92 


Bobby McEachem 

v. 
Fayetteville State University 


91 OSP 0839 


Gray 


02 06/92 


Singletree, Inn 

V. 

EHR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01/16/92 


Henry B. Earnhardt 

V. 

Mt Pleasant Vol Fire Dept, St Auditor/ Firemen's 
Rescue Squad Workers' Pension Fund 


91 DSA 0843 


Reilly 


01/29/92 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



152 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Mackey L. Hall 

V. 

DMR. Division of Social Senices, CSE 


91 CSE 0854 


Reilly 


01,17,92 


Kay Long 

V. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03,17,92 


Alcoholic Beverage Control Commission 

V. 

Mack Ray Chapman, ta Ponderosa I ounge 


91 ABC 0887 


.Morrison 


01 ,'31, '92 


Joseph W. Devlin Jr., Johnson Brothers Carolina Dist 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02,11/92 


Ossie Beard 

V. 

FHR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03,12/92 


.Alcoholic Beverage Control Commission 

V. 

Trinity C. C, Inc., t /a Trinity College Cafe 


91 ABC 0915 


West 


02,T1,'92 


N.C. /Vlcohohc Beverage Control Commission 

v. 

Jessie Pendergraft Rigsbee. T/A Club 2000 


91 ABC 0919 


West 


03,T2,'92 


.Vlcoholic Beverage Control Commission 

v. 

Cedric Warren Edwards, t a Great, American Food Store 


91 ABC 0923 


Becton 


0226,92 


Department of Environment, Health, & Natural Resources 

V. 

Hull's Sandwich Shop, Andy Hull 


91 EHR 0936 


West 


OL 09/92 


Betty Davis d b a ABC Academy 

v. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Morrison 


01 31 92 


Thomas J. Hailey 

V. 

EHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


0115 92 


Ronald Waverly Jackson 

V. 

EHR. Division of .Maternal & Child Health. WIC Section 


91 EHR 0963 


Gray 


02 24 92 


Century Care of Eaurinburg, Inc. 

V. 

DHR, Di\ision of Facility Sen.ices, Licensure Section 


91 DHR 0981 


Gray 


03 24 92 


Roy Shcaley 

V. 

\'ictims Compensation Commission 


91 CPS 1002 


Morrison 


01 31 92 


Willie Brad Baldwin 
l^HR, Division of Social Services, CSE 


91 CSE 1020 


Reilly 


01 28 92 


Clinton Dawson 

\. 
N.C. Department of Transportation 


91 OSP 1021 


Mann 


03 05 92 



I5i 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Benjamin C. Dawson 

V. 

Department of Correction 


91 OSP 1025 


West 


02/18/92 


Paulette R. Smith 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1026 


ReiUy 


02/27/92 


Scot Dawson 

V. 

Department of Labor 


91 DOE 1031 


West 


02/24/92 


Luis A. Rosario 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03/03/92 


Randy Quinton King 

V. 

CCPS, State Highway Patrol 


91 OSP 1064 


Gray 


03/24/92 


WiUiam H. Hogsed 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1070 


Nesnow 


03/16/92 


David L. Brown 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1074 


Morrison 


03/31/92 


Donald M. Washington 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03/04/92 


Melvin L. Miller Sr. 

v. 

DHR, Division of Social Ser\'ices, CSE 


91 CSE 1084 


Morrison 


03/16/92 


Bobby G. Evans 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1094 


Reilly 


01/13/92 


William Louis Timmons 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Mann 


02/18/92 


Raymond Junior Cagle 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1-123 


Mann 


03/30/92 


Richard E. Murray 

V. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01/13/92 


Pathia Miller 

V. 

DHR, Division of Facihty Services, Child Day Care Section 


91 DHR 1135 


Mann 


03/31/92 


Atlantic Enterprises, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1136 


Reilly 


01/23/92 


Theresa M. Sparrow 

v. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02/04/92 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



154 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Darrel D. Shields 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1141 


Morgan 


03 30 92 


James A. Hinson 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1154 


.Mann 


02,18,92 


George H. Parks Jr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1157 


.Morrison 


01/27/92 


Adrian Chandler Harley 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1180 


Nesnow 


02; 10/92 


Billy J. HaU 

V. 

DHR, Division of Social Ser\ices. CSE 


91 CSE 1182 


Nesnow 


02,10/92 


Donaldson L. Wooten 

V. 

DHR, Di%ision of Social Ser\ices, CSE 


91 CSE 1189 


Reilly 


03/13 92 


WiUiam P. Reid 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1193 


Nesnow 


02,04 92 


Ronald G. Bolden 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1208 


Gray 


02 26 '92 


\\'a\ne Phillip Irb> 

V. 

DHR. Di\ision of Social Services, CSE 


91 CSE 1211 


Nesnow 


02 04 92 


Tony HoUingsworth 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1212 


Nesnow 


02,10/92 


Russell G. Ginn 

v. 

Department of Correction 


91 OSP 1224 


Reilly 


02 14 92 


/Vngela .McDonald .McDougald 

v. 

DHR, Di\ision of Social Services, CSE 


91 CSE 1227 


Nesnow 


02 28/92 


Sering O. .\Ibye 

V. 

DHR, Di\ision of Social Scr\ices. CSE 


91 CSE 1228 


Mann 


03 11,92 


.-Vrthur Thomas McDonald Jr. 
DHR, Division of Social Sen.ices, CSE 


91 CSE 1252 


Morrison 


03 31 92 


Stanford Earl Rem 

v. 

DHR. Dnision of Social Senices, CSE 


91 CSI-; 1255 


Nesnow 


02 04 92 


Gene \\'ea\er 

V. 

DHR. Di\ision of Social Senices, CSE 


91 CSE 12M 


Reilly 


03 25 92 



155 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 





CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


James T, White 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1271 


Gray 


02/27/92 


Ronald Brown and Regina Brown 

V. 

DFIR, Division of Facility Services 


91 DHR 1278 


Becton 


02/25/92 


Samuel /Vrmwood 

V. 

David Brantley, Wayne County Clerk of Superior Court 


91 CSE 1285 


Reilly 


02/11/92 


Raymond Vaughan 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1304 


Reilly 


03/09/92 


Stanley Wayne Gibbs 

v. 

Elizabeth City State University 


91 OSP 1318 


Gray 


01/14/92 


David Martin Strode 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1327 


Morgan 


03/19/92 


Steveason M. Bailey 

V. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01/28/92 


Gary N. Rhoda 

V. 

Department of Correction 


91 OSP 1361 


Nesnow 


01/31/92 


William A. SeUers 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1395 


Gray 


04/01/92 


Marc D. Walker 

V, 

CCPS, Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03/16/92 


Serena Gaynor 

V. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03/02/92 


Betty Davis, D, B A ABC Academy 

V. 

DHR, Division of Facility Ser\ices. Child Day Care Section 


91 DHR 1408 


Chess 


03/30/92 


Charles R. WeUons II 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1418 


West 


02/25/92 


Charley Joe Milligan 

V. 

Bd of Trustees,' I X)cal Govt Emp Retirement Sys 


91 DST 1424 


Gray 


02/27/92 


Roy Blalock, Deborah Eakms, John Gordon Wright 

V. 

UNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03/13/92 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



156 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


AU 


FILED 
DATE 


New Bern-Craven County Board of Fiducation, 
a Statutory Corporation of North Carolina 

V. 

The Honorable Harlan E. Boyles, State Treasurer, 

The Honorable Fred W. Talton, State Controller, 

The Honorable William W. Cobey, Jr., Sec. of EHR, 

Dr. George T. E\erett, Dir., Div. of En\ironmcntal Mgmt. 


92 EHR 0003 


Reilly 


03/13/92 


Pnvate Protective Services Board 

V. 

Robert R. MissLldine, Jr. 


92 DOJ 0025 


Becton 


03/23/92 


Cindy G. Bartlett 

V. 

Department of Correction 


92 OSP 0029 


ReiUy 


03/16/92 


Kurt Hafner 

V. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03/04/92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

V. 

LNC - Chapel Hill 


92 OSP 0096 


Gray 


03/13/92 


Youth locus. Inc. (MID # 239-23-0865T) 

V. 

DHR, Division of Medical Assistance 


92 DHR 0110 


Gray 


02/26/92 



15: 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CUMBERLAND 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 DHR 0666 



KIDD'S DAY CARE AND PRESCHOOL, 
Petitioner 



CHILD DAY CARE SECTION, 

Respondent 



RECOMMENDED DECISION 



This matter is before the undersigned administrative law judge on motion by the Respondent for 
an order granting summary judgment in its favor. 



APPEARANCES 



Petitioner: 



Pro se. 



Respondent: Jennie JarrelJ Hayman, Assistant Attorney 
General, Department of Justice, Raleigh, 
North Carolina 



ISSUE 

Whether the Child Day Care Section of the Department of Human Resources erred when it issued 
a written reprimand to the Petitioner for allegedly leaving children unattended in the day care center's 
van. 

SUMMARY OF UNDISPUTED FACTS 

Kidd's Day Care and Preschool, the Petitioner in the matter, is a child day center operated by 
Ms. Marian Kidd and located in Fayetteville, North Carohna. The Petitioner is licensed by the Re- 
spondent, Child Day Care Section, Division of laciLity Services, Department of Human Resources, to 
operate a child day care center. 

On April 29, 1991, the Respondent received a report alleging child neglect at Kidd's Day Care and 
Preschool. The report alleged that day care children were left unattended on the Petitioner's van with 
the engine running while the driver left the van. 

Glenda Holmes, the van driver, recalls one incident when she drove the van to the front of the day 
care center building to pick up a child at the front door of the center. Ms. Holmes got out of the van 
in order to assist the child in boarding the van. She left the engine running and other school age chil- 
dren inside the van wtule she walked around the front of the van and took approximately nine steps 
away from the van so that she could assist the child leaving the building board the van. After helping 
the child through the van's side door and securing the child's seat belt, .Ms. Holmes walked around the 
front of the van and returned to the driver's seat. .Ms. Holmes was able to maintain visual contact with 
the van and the children on board the van at all times during the boarding process. 



7:2 NORTH CAROLINA REGISTER April 15, 1992 



158 



COXTESTED CASE DECISIONS 



On May 31, 1991, a written reprimand was issued to the Petitioner due to an alleged violation of 
10 NCAC 3U .1003(h) which provides that "Children shall ne\'er be left in a vehicle unattended by an 
adult." 



CONCl.l SIGNS OF L.WV 

1. At issue in this contested case is the meaning of the term "unattended." The term "unattended" 
is not defined in the Administrative Code. The Respondent contends that "unattended" means 
that an adult must be inside the vehicle with the children at all times. The Petitioner, on the other 
hand, contends that "unattended" means lack of \isual contact with the children being supervised. 

2. One of the principles of statutory or regulatory construction is that words should be given their 
plain and ordmary meaning. Webster's TTiird New International Dictionary 1961, defines "unat- 
tended" as follows: 

(1) Not attended; 

a. lacking a guard, escort, caretaker or other watcher. 

b. lacking people in attendance. 

(2) Unaccompanied; 

(3) a. not cared for: untended. 

b. not watched with care, attentiveness or accuracy. 

The focus of the definitions found in Webster's appears to be on proximity and attentiveness 
(visual contact coupled with the ability to react appropriately to what one observes). 

4. In Pmvon v. Settle. 263 N.C. 578, 139 S.E.2d 863 (1965), the court held that leaving a motor 
(sic) \ehicle "unattended" means leaving it without any one present who is competent to prevent 

any of the probable dangers to the public. Pin von, however, only addresses the question of when 
a \chicle is unattended. The Court did not consider the issue of whether the child in the vehicle 
was unattended. By way of analogy, one might argue that leaving a chdd without any one present 
who is competent to prevent any of the probable dangers that might occur to the child constitutes 
lea\mg the child unattended. This definition is similar to the focus on proximity and attentiveness 
found in the definitions for unattended in Webster's. 

5. Applying the definitions of unattended found in Webster's to the facts in this case, one can con- 
clude that since Ms. Holmes was in close proximity to both the children and the vehicle, the 
children in the \an were not without a caretaker or other watcher; they were not unaccompanied; 
and they were not without someone to care for them. The fact that the person supervising them 
did not remain inside the van with them at all times does not necessarily mean that the children 
were not watched with care, attentiveness or accuracy. TTiere are no facts indicating that the 
children were not closely watched. 

6. The children were not unattended merely because the adult responsible for super, ising them was 
not physically inside the vehicle with them. Ordinanly, an adult outside a vehicle should be able 
to respond to what ever circumstances develop as long as the person is attenti\e and within a 
reasonable distance of the vehicle. 

7. A reasonable interpretation of "unattended" in the regulation involved in this case is that an adult 
must be in close enough proximity to the children to maintain \isual contact and to react to 
whatever probable needs or emergencies that might arise. 

8. The \'an driver was able to maintain visual contact with the children in the van. and nine steps 
away from the van is not so unreasonable a distance that one would not expect the driver to be 
able to react to whatever probable needs or emergencies that could occur. 



159 7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



9. The fact that it might not have been wise or prudent of the driver to leave the keys in the ignition 
and the van running while she was assisting a child to board is a separate issue from that of whether 
the children were unattended. 

10. If it was the intent of the regulation in question to require that an adult remain inside the vehicle 
rather than to attentively supervise the children, then the regulation could have and should have 
specifically said that when children are in a vehicle, an adult must remain inside the vehicle with 
the children. The term "unattended" does not mean that one can never leave the vehicle while 
there are children in it. 

1 1 . The respondent erred when it issued the May 31, 1 99 1 written reprimand to the Petitioner. 

12. The Respondent is not entitled to summary judgment in its favor. 

13. The Petitioner is entitled to summary judgment in its favor. 

RECOMMRNDED DECISION 

The Department of Human Resources will make the Final Decision in this contested case. It is 
recommended that the agency adopt the Findings of Fact and Conclusions of Law set forth above and 
enter summary judgment in favor of the Petitioner and rescind the May 31, 1991 written reprimand 
directed to the Petitioner. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Adminis- 
trative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina 
General Statutes section 150B-36(b). 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Stat- 
utes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED 
DECISION, and to present written arguments to those in the agency who will make the fmal decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of 
the Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 



This the 25th day of March, 1992. 



Brenda B. Becton 
Administrative Law Judge 



7:2 NORTH CAROLINA REGISTER April 15, 1992 160 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COLNTY OF SCOTLAND 91 DHR 0981 



CENTURY CARE OF LAURINBLRG, INC., ) 

Petitioner ) 



) 

NORTH CAROLINA DEPARTMENT OF ) 

HLMAN RESOURCES, DIVISION OF ) 

FACILITY SERVICES, LICENSURE SECTION, ) 

Respondent ) 



) 

) RECOMMENDED DECISION 



This contested case came on for hearing before the undersigned on March 17, 1992, on the Motion 
of Petitioner Century Care of Laurinburg, Inc. ("Century Care"), for a recommended decision in the 
nature of summary disposition. Appearing on behalf of the Petitioner were Robert V. Bode, S. Todd 
Hemphill, and Diana E. Ricketts, of the law firm of Bode Call & Green. Appearing on behalf of the 
Respondent North Carolina Department of Human Resources, Division of Facility Services, Licensure 
Section (the "Agency") was Amy A. Barnes, Associate Attorney General, North Carolina Department 
of Justice. 

At issue in Petitioner's Motion is the composition of the Agency's Penalty Review Committee, 
which recommended the assessment of the penalty which is the subject of this contested case. 
Petitioner contends that the Penalty Review Committee was not properly constituted because, contrary 
to the requirements of G.S. § 143B-10(d), the majority of the members of the Committee reside in the 
same congressional district. 

ISSUE 

WTiether there is any genuine issue as to any material fact and whether any party is entitled to 
summary disposition as a matter of law. 

BURDEN OF PROOF 

The moving party has the burden of establishing that there is no genuine issue as to any material 
fact and that it is entitled to summary disposition as a matter of law. 

I NDISPUTED FACTS 

Based on the uncontroverted evidence appearing of record, to which consideration mav be given 
under G.S. § 150B-33(3a), 26 NCAC 3.0001, 3.0005(6), and Rule 56, N.C.R.Civ.P., mc'luding the 
pleadings, affidavits and discover,' submitted, and ha\ing considered the legal memoranda submitted 
by the parties and the oral argument of .March 17, 1992, the undersigned has concluded that there is 
no genuine issue as to any material fact and makes the following fmds of undisputed, material fact: 

1. The Penalty Review Committee established by the Agency recommended that the penalty 
which is the subject of this contested case hearing be assessed against Petitioner. 

2. The penalty was assessed by letter dated September 24, 1991, from Lynda D. McDaniel, Chief 
of the Licensure Section, to Noah Duncan, Administrator, Century Care of Laurinburg. 

3. Petitioner timely appealed the assessment of that penalty to the Office of Administrative 
Hcarinas. 



4. G.S, § 143B-in(d) provides as foUows: 



161 7:2 NORTH CAROLINA REGISTER April 15, 1992 



CO IS TEST ED CASE DECISIONS 



(d) Appointment of Committees or Councih. - The head of each principal department 
may create and appoint committees or councils to consult with and advise the department. 
The General Assembly declares its policy that insofar as feasible, such committees or 
councils shall consist of no more than 1 1 members, with not more than one from each 
congressional district. If any department head desires to vary this pohcy, he must make a 
request in writing to the Governor, stating the reasons for the request. The Governor may 
approve the request, but may only do so in writing. Copies of the request and approval 
shall be transmitted to the Advisory Budget Commission and the Joint Legislative Com- 
mission on governmental Operations. The members of any committee or council created 
by the head of a principal department shall serve at the pleasure of the head of the principal 
department and may be paid per diem and necessary travel and subsistence expenses with 
the provisions of G.S. 138-5, when approved in advance by the Director of the Budget. 
Per diem, travel, and subsistence payments to members of the committees or councils cre- 
ated in connection with federal programs shall be paid from federal funds unless otherwise 
provided by law. 

An armual report listing these committees or councils, the total membership on each, the 
cost in the last 12 months and the source of funding, and the title of the person who made 
the appointments shall be made to the Advisory budget Commission and the Joint Legis- 
lative Commission on Governmental Of>erations by March 31, of each year. 

Prior to taking any action under this subsection, the Director of the Budget may consult 
with the Advisory Budget Commission. 

5. G.S. § 131D-34(h) provides as follows; 

(h) The Secretary shall establish a penalty review committee within the Department, which 
shaU review administrative penalties assessed pursuant to this section and pursuant to G.S. 
13 IE- 129. The Secretary shall ensure that departmental staff review of local departments 
of social services' penalty recommendations along with prepared staff recommendations for 
the penalty review committee are completed within 60 days of receipt of the Department 
of the local recommendations. The Penalty Review Committee shall not review penalty 
recommendations agreed to by the Department and the long-term care facility for Type B 
violations except those violations that have been previously cited against the long-term care 
facility during the previous 12 months or within the time period of the previous hcensure 
inspection, whichever time period is longer. TTie Secretary shall ensure that the Nursing 
Home/Rest Home Penalty Review Conmiittee estabhshed by this subsection is comprised 
of nine members. At least one member shall be appointed from each of the following 
categories: 

(1) A licensed pharmacist; 

(2) A registered nurse experienced in long-term care; 

(3) A representative of a nursing home; 

(4) A representative of a domiciliary home; and 

(5) A public member. 

Neither the pharmacist, nurse, nor pubUc member appointed under this subsection nor any 
member of their immediate families shaU be employed by or own interest in a nursing home 
or domiciliary home. 

Each member of the Committee shall serve a term of two years. The initial terms of the 
members shaO commence on August 3, 1989. The Secretary shall fill all vacancies. Lln- 
excused absences from three consecutive meetings constitute resignation from the Com- 
mittee. 



7:2 NORTH CAROLINA REGISTER April 15, 1992 162 



CO\TESTED CASE DECISIONS 



6. G.S. § 13 IE- 129(g) provides as follows: 

(g) The penalty review committee established pursuant to G.S. 131D-34(h) shall review 
administrative penalties assessed pursuant to this section, provided, however, that the Pen- 
alty Review Committee shall not review penalty recommendations agreed to by the De- 
partment and the long-term care facility for Type B violations except those violations that 
have been previously cited against the long-term care facihty during the previous 12 months, 
or within the time period of the previous Hcensure inspection whichever time period is 
longer. 

7. The Penalty Review Committee which recommended the penalty against Petitioner was 
comprised of nine members, more than one of whom were residents of the 4th congressional District. 

8. The Agency has never requested in writing to the Governor approval for the membership of 
the Penalty Review Committee to be comprised of more than one member from any congressional 
district. 

9. The Governor has never approved, in writing, a request by the Department to include more 
than one member from one congressional district on the Penalty Review Committee. 

10. The Agency established the Penalty Review Committee by DUR Directive Number 40, which 
was issued by the Secretary of the Department of Human Resources, and which has been made a part 
of this admimstrative record. 

11. DHR Du-ective Number 40 cites G.S. §§ 143B-10, 131D-34 and 131E-129 m the beginning 
of the Directive as authority. 

12. DHR Directive Number 40 specifically cites G.S. § 143B- 10(d) as authority for the payment 
of per diem and necessary travel and other expenses for members of the Penalty Review Committee. 

13. The Agency listed the Penalty Review Committee as one of the committees of the Division 
of Facility Services in its 1990 and 1991 reports to the Advisory Budget Commission. 

Based upon the foregoing facts, the undersigned makes the following; 

CONCLl SIONS OF LAW 

1. There is no genuine issue of material fact and. based upon the statutes quoted above. G.S. §§ 
143B-10(d). 131D-34(h), and 131E-129(g), the Petitioner, Century Care of Louisburg, Inc. is entitled 
to summaPv' disposition as a matter of law. 

2. The Agency was required to comply with G.S. § 143B- 10(d) in establishing the Penalty Review 
Committee. 

3. The .Agency failed to comply with G.S. § 143B- 10(d) because more than one member of the 
Penalty Re\iew Committee was from the 4th Congressional District, and because the Agency never 
requested of or received from the Governor approval for a variance from this requirement. 

4. In ordering payment of a penalty based upon the recommendation of an improperly constituted 
Penalty Review Committee, the .Agency exceeded it authority, acted erroneously, failed to use proper 
procedure, and failed to act as required by law. G.S. § 150B-23(a)(l), (2), (3) and (5). 

DISCI SSION 

The .Agency argues that G.S. § 143B- 10(d) has no apphcation to the Penalty Re\iew Committee, 
because there is separate statutory" authority for the creation of the Penalty Review Committee in G.S. 



163 7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



§ 131D-34(h) which specifically established and sets guidelines for the membership of the Committee. 
The Agency further argues that, as G.S. § 131D- 34(h) was enacted later in time than G.S. § 143B- 10(d), 
to the extent there are any conflicts between the statutes, the later-enacted and more specific statute 
regarding the Penalty Review Committee should take precedence, the undersigned disagrees with these 
arguments for two reasons. 

First, the Secretary of the Department of Human Resources has cited as authority in the beginning 
of DHR Directive Number 40, which was made a part of this administrative record by both parties, 
G.S. §§ 131D-34, 131E-129, and 143B-10(d). Additionally, the Secretary cites G.S. § 143B- 10(d) in the 
Directive as authority for payment to members of the Committee of per diem and travel expenses. 
Additionally, the Agency has admitted that it submitted information to the Advisory Budget Com- 
mission of the State Budget Office regarding the Penalty Review Committee. The statutory authority 
requiring such admission is G.S. § 143B- 10(b), and the Agency has cited no other statutory authority 
requiring its submission of this information to the Advisory Budget Commission. Thus, the Agency 
clearly has relied upon G.S. § 143B- 10(d) in creation and administration of the Penalty Review Com- 
mittee and contemplated that G.S. § 143B- 10(d) apphes at least in some respects to the Penalty Review 
Committee. However, the Agency does not have the authority to take advantage of some of the pro- 
visions of the statute while ignoring others. 

Second, upon review the three statutes quoted hereinabove, the undersigned finds no conflict be- 
tween their provisions, and holds that the Agency must comply with all of them in forming the Penalty 
Review Committee and in assessing penalties. Ihe proper construction of different statutory provisions 
deahng with the same subject is to harmonize those statutes if possible. The three statutes simply do 
• not conflict with each other, because the requirements of each can be achieved without doing violence 
to the requirements of the others. 

Specifically, G.S. § 143B- 10(d) requires that department conmiittees be comprised of no more than 
1 1 members, with no two members residing in the same congressional district. G.S. § 131D-34(h) re- 
quires that the Penalty Review Committee be comprised of 9 members, five of whom must be ap- 
pointed from certain specific categories. Notably, these latter five statutorily required members of the 
Penalty Review Committee were each from different congressional districts. The Agency has not 
claimed or made any showing that it could not have similarly appointed the remaining four members 
from different congressional districts. 

Moreover, if the Agency wished to depart from the provisions of G.S. § 143B- 10(d) regarding the 
residences of the Penalty Review Committee members, the statute provides a ready remedy. The 
Secretary' may apply in writing to the Governor to vary this policy, and the Governor may approve 
such variance in writing. However, the Agency has admitted that it has never even considered this al- 
ternative. 

Based on the foregoing, the undersigned concludes that the Penalty Review Committee was im- 
properly comprised because it consisted of more than one member from one congressional district 
contrary to the requirements under G.S. § 143B- 10(d). 

The next question which must be answered is what effect this conclusion has upon the penalty 
which was assessed upon Century Care by the Agency. G.S. §§ 131D-34(h) and 131E-129(g) answer 
this question. Both statutes are mandatory, in requiring that the Penalty Review Committee be es- 
tablished to review administrative penalties assessed by the Agency. If a properly constituted Penalty 
Review Committee has not reviewed the penalties prior to their assessment against the facihty, then the 
Agency has not followed proper procedure in assessing the penalty. There can be no valid penalty 
unless the procedure has been followed. 

DKCISION 

Therefore, the undersigned recommends that Petitioner's Motion for Summary Disposition be 
granted, on the grounds that the Penalty Review Committee which recommended the penalty was 
improperly constituted in contravention of the statutor)' requirement, and that the assessment of the 



7:2 NORTH CAROLINA REGISTER April 15, 1992 164 



CONTESTED CASE DEClSIOyS 



penalty was therefore made in excess of statutory authority, upon improper procedure, erroneously and 
contrar)' to law. 

Accordingly, Petitioner's Motion for a Recommended Decision in the Nature of SurrLmar>' Dis- 
position is granted and it is recommended that the penalty assessed against Petitioner be vacated. 

NOTICE 

The Agency making the fmal decision in this contested case is required to give each party an op- 
portunity to fde exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the fmal decision. N.C. Gen. Stat. § 150B-36(a). 

The Secretary^ of the North Carolina Department of Human Resources or his designee will make 
the fmal decision in this contested case. 

This the 24th day of March, 1992. 



Beecher R. Gray 
Administrative Law Judge 



165 7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF DLPLIN 91 OSP 1064 



RANDY QL'INTON KING, ) 

Petitioner ) 



) 

NORTH CAROLINA DEPARTMENT OF ) 

CRIME CONTROL AND PLBLIC SAFETY, ) 

STATE HIGHWAY PATROL, ) 

Respondent ) 



) 

) RECOMMENDED DECISION 



This matter was heard before Beecher R. Gray, administrative law judge, on February 1 1-14, 1992 
in Raleigh, North Carolina. At the close of the evidence, the parties made oral closing arguments and 
elected not to order transcripts or to file written proposals and arguments. 

APPEARANCES 

Petitioner: John P. Edwards, Jr., Esq. 

Respondent: Joseph P. Dugdale, Esq. 

ISSUE 

Whether Respondent had just cause to terminate Petitioner's employment on August 5, 1991 for 
reasons of improper personal conduct. 

FINDINGS OF FACT 

1 . The parties received notices of hearing by certified mail more than 1 5 days prior to the hearing and 
so stipulated on the record. 

2. The parties further stipulated on the record that Petitioner was a permanent state employee under 
Chapter 126 of the General Statutes of North Carolina at the time of his dismissal. 

3. Petitioner was married to Tamela Marion King in June, 1986. Tamela King had two daughters 
by a previous marriage, both of whom lived with her and Petitioner as of June 1, 1991. 

4. Petitioner was employed by Respondent as a State Highway Patrol Trooper for more than 10 years. 

He served in the Patrol in various locations within the State. As of June 1, 1991, Petitioner and 
his wife Tamela King resided in Faison, North Carolina with his stepdaughters Candice Brooks 
Murphy (Brooks) and LaShea Murphy (Shea). 

5. Prior to June 1, 1991, Petitioner and Tamela King had developed marital diificulties and were 
discussing a separation. They had agreed that Petitioner should obtain a separation agreement 
from his attorney. Petitioner's attorney prepared a separation agreement signed by Petitioner. 
Tamela King had picked up and brought home a copy of the separation agreement from 
Petitioner's attorney's office so that it could be reviewed by her attorney prior to her signing it. 

6. On the night of May 31, 1991, Brooks Murphy participated in a dance recital. Tamela King's 
mother and father were in Petitioner's house on that day. Petitioner did not want to discuss the 
pending separation agreement with them so he did not attend the dance recital and did not stay in 
his house that night. Instead, he drove to the beach to fish and did not return to his house in 
Faison until sometime between 7:00 p.m. and 8:00 p.m. on June 1, 1991. 



7:2 NORTH CAROLINA REGISTER April 15, 1992 166 



COST EST ED CASE DECISIONS 



1. WHien Petitioner arrived home, Tamela King was asleep in the bed they shared in the master 
bedroom. Shea Murphy was asleep in her bedroom and Brooks Murphy was watching television 
in a room directly across the hall from the master bedroom where her mother was asleep. Neither 
Brooks' door nor the master bedroom door was completely closed. 

8. Upon Petitioner's entering the master bedroom, Tamela King woke up. The couple engaged in 
some conversation about the proposed separation agreement. The parties were experiencing 
marital discord and the conversation was not light and pleasant. The conversation did not escalate 
into shouts. As Petitioner continued with the con\ersation, he discovered a note left on the dresser 
for him by his mother-in-law, Doris Marion. "The note commented on the couple's marital 
problems and particularly expressed Doris .Marion's disagreement with the separation agreement 
that Petitioner had obtained from his lawyer. 

9. As the conversation was continuing, Petitioner was in the process of laying out his State Highway 

Patrol uniform for work the ne.xt morning. During this process, he handled his shirt, socks, shoes, 
pants, pens and other shirt paraphemalia, ;md his 9mm sidearm. Petitioner left the sidearm on top 
of or in the top drawer of the dresser which was near the foot of the bed and shghtly to one side. 
\Miile Petitioner was preparing his uniform and he and Tamela King were earning on the con- 
versation, Brooks Murphy came into, or started to come into, the master bedroom. She did not 
come all the way into the room and returned to her own room just across the hallway. 

10. Petitioner got into the bed at about 8:00-8:15 p.m. Shortly thereafter, Tamela King got out of the 
bed and left the room. 

1 1. When Tamela King left the master bedroom, she stopped by Brooks' room and instructed her to 
get into the car because they were going to lea\e. Tamela King did not say anvthing to Shea 
Murphy who was asleep in her bedroom at the time. Tamela King did not take Shea Murphy 
with her when she left the house. WTien Tamela King took her daughter Brooks .Murphy and left 
the famil\' home on the night of June 1, 1^^91, she forgot that she also had an older daughter. Shea 
Murphy, who was asleep in her bedroom. About an hour later Tamela King, in response to a 
question from Faison magistrate Vema Taylor, remembered that she had an older daughter named 
Shea Murphy who was stiU in the house asleep. At magistrate Taylor's suggestion, and having 
her memory refreshed. Tamela King returned to the King household and removed her daughter 
Shea -Murphy. 

12. Upon leaving the King household on the night of June 1. 1991 at about 8:15 p.m., Tamela King 
stopped at a pay phone and telephoned her attorney Carolyn Ingram at home. Carolyn Ingram 
ad\ised her to call Faison magistrate Vema Taylor and to try to see her about getting a warrant. 
Tamela King told Carolyn Ingram that Petitioner had pointed his pistol at her during the con\er- 
sation in the master bedroom saying "I ouglit to shoot \'ou." 

13. WTien Tamela King telephoned Vema Taylor, she was cPiing and upset. Vema Taylor instructed 
her to drive to magistrate Taylor's house, where she maintained an office. Upon Tamela King s 
arrival, magistrate Taylor observed that she was emotionally distrauglit but not fearful of 
Petitioner. \'ema Taylor observed some redness and slight swelling on Tamela King's hand be- 
tween her thumb and foretlnger, the location where she reported to magistrate Taylor that 
Petitioner had pinched her. Taniela King also told magistrate Taylor that Petitioner did not strike 
her but had placed his fist against her jaw and apphed some pressure. 

14. After the initial inteniew, Tamela King left magistrate Taylor's presence to go outside with Faison 
pohceman Wade Wheless for a smoke break. Brooks Murphy accompanied her mother during 
the outside smoke break. When Tamela Kmg returned inside to magistrate Taylor, she informed 
the madstrate that Petitioner also had pointed his pistol at her and stated that he ouaht to shoot 
her. 

15. Mxqx Tamela King, Wade Wheless, and Brooks Murphy came back inside Vema Taylor's house, 
magistrate Taylor asked Brooks Murphy what she had seen. Brooks stated that she had started 



167 7:2 NORTH CAROLiyA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



into the master bedroom but had gotten scared and returned to her own room. She did not state 
to magistrate Taylor that she had seen a gun. 

16. After Tamela King went back to the King household and brought Shea Murphy out, she and Shea 
returned to magistrate Taylor's house. Tamela King told Shea during the drive back to the 
magistrate's house that Petitioner had pointed a gun at her and held his fist to her face. While at 
the magistrate's house, Shea asked her sister Brooks what she had seen or heard in the master 
bedroom while Petitioner and her mom were in it earlier in the evening. Brooks told Shea that 
she had heard the words "I ought to" but had not seen a gun. Shea Murphy and her stepmother 
Sandra Murphy later asked Brooks if she had seen a gun on the night of June 1, 1991 during the 
incident between Petitioner and her mother in the master bedroom. Brooks stated to Shea at that 
time that she had not seen a gun but that her mother Tamela King had told her to tell Doris 
Marion, Brooks' matemal grandmother, that she had seen a gun. 

17. Magistrate Vema Taylor issued two warrants for Petitioner on the night of June 1, 1991. One 
warrant was for assault on a female and one was for communicating a threat. Petitioner was ar- 
rested at his Faison home on the night of June 1, 1991. After his arrest and while the household 
was vacant, Tamela King retumed and packed her bags and departed Faison with her daughters. 

18. Petitioner was tried and convicted upon his plea of not guilty in District Court for Duplin County 
on July 18, 1991 on charges of assault on a female and assault by pointing a gun. The charge of 
communicating a threat was dismissed by the district attorney. Petitioner gave timely notice of 
appeal to Superior Court for a trial de novo. Before the trial date in Superior Court, the district 
attorney took a voluntary dismissal of all charges against Petitioner. On August 5, 1991, Petitioner 
was dismissed from the State Highway Patrol on the basis of assault on a female and assault by 
pointing a gun. 

19. Brooks Murphy did not testify in the criminal trial in Duplin County on July 18, 1991. Re- 
spondent did not interview either Brooks or Shea Murphy during its investigation of the events 
of June 1, 1991. Tamela King informed Lt. W. M. Autry, Internal Affairs Investigator for Re- 
spondent, that Brooks had come into the master bedroom while Petitioner had his pistol pointed 
at her. Respondent attempted to interview Brooks Murphy, a purported eyewitness, but was not 
allowed to do so by Brooks' mother Tamela King. Brooks Murphy has remained in the custody 
of Tamela King since June 1, 1991. Shea Murphy remained in the custody of Tamela King from 
June 1, 1991 until a court order awarded custody to her father, Milton Murphy, on November 17, 
1991. 

20. Brooks Murphy was called as a witness by Respondent in this contested case hearing. Brooks 
was nine years old on June 1, 1991 and had become ten years old by the time of this hearing. 
Brooks .Murphy was very emotional and exJiibited a high level of anxiety during her testimony. 
When she attempted to testify about whether she had seen Petitioner point a gun at her mother, 
she broke down and could not continue. After a bench conference and agreement between 
counsel, the hearing room was cleared of all persons except counsel for each party, the court re- 
porter, and the administrative law judge. Tamela King resisted the request to leave the room. 
Upon being requested for a second time to leave the room, she stated loudly to her daughter. 
Brooks Murphy, that ''I will not let them hurt you." This statement was not intended, nor did 
it have, a calming effect on Brooks Murphy. 

21. Brooks Murphy did manage to testify after the hearing room was cleared and she had time to settle 
down. She was particularly emotionally sensitive when asked to give answers to questions about 
whether she had seen Petitioner pointing a gun at her mother. 

22. Brooks Murphy's testimony in this contested case hearing cannot be regarded as trustworthy. The 
content of her testimony, her demeanor, and the inconsistent statements she made to Shea Murphy 
and to Vema Taylor, compel a finding that her testimony lacks the indicia of credibility necessary 
to support findings of fact based upon it. 



7:2 NORTH CAROLINA REGISTER April 15, 1992 I6S 



C0.\ TESTED CASE DECISIOSS 



23. Brooks Murphy, Shea Murphy, and Tamela King all share an opinion that Petitioner was a good 
father to the two girls and a good husband. 

24. Tamela King was called as a material, critical witness by Respondent. Respondent's case against 
Petitioner is based upon the statements of Tamela King. As a witness Tamela King was evasive 
and nonresponsive in her answers. She tended to launch into speeches and to answer questions 
by discussing matters not inquired about by the question. She repeatedly had to be instructed to 
give responsive answers. The demeanor of Tamela King was not reflective of a person who 
understands the solemn obligations of the oath to tell the truth and proceeds to do so. The totahty 
of her testimony and the demeanor she exhibited during its recitation compel a fmding that her 
testimony lacks the credibility requisite to basing fmdings of fact upon it. 

25. Se\enteen (17) witnesses testified in this case in the form of reputation or opinion under G.S. 8C-1 
Rule 60S(a) as to the character of Tamela Kmg for truthfulness or untruthfulness. Thirteen (13) 
of the seventeen witnesses gave reputation or opinion evidence that Tamela King is an untruthful 
person or that she is an untruthful person some of the time. Notable among those who so testified 
were Jo.\rm \\'agoner, a personal confidant of Tamela King's mother, Doris Marion, and who has 
known Tamela King for 20 years or more; Doris .Marion; and Tamela King's 13 year old daughter, 
Shea Murphy. 

CONCLUSIONS OF I AW 



Based upon the foregoing findings of fact, I make the following conclusions of law. 

1 . The parties are properly before the Office of .Administrative Hearings. 

2. Respondent has the burden of showing by a preponderance of substantial evidence that Petitioner 
engaged in the conduct with which he has been charged and that such conduct constitutes just 
cause to terminate the constitutionally protected interest he holds in continued employment by 
Respondent. Respondent's evidence in this contested case does not carr>" the burden of showing 
by a preponderance of substantial evidence that on June 1, 1991 Petitioner assaulted his wife, 
Tamela King, by pointing a pistol at her, by pushing his list against her jaw, or apphing pressure 
to her hand. 

3. Respondent has failed to establish by a prepxjnderance of substantial evidence that Petitioner s 
testimony in defense of assault charges brought by Tamela King in Duplin County District Court 
on July 18, 1991 brought his personal and professional credibility into disrepute and impaired the 
reputation of the Highway Patrol. 

RECOMMENDED DECISION 

Based upon the foregomg fmdings of fact and conclusions of law, it is hereby recommended that 
Respondent's decision to terminate the employment of Petitioner Randy Quinton King on August 5, 
1991 for improper personal conduct be reversed for lack of just cause. It is recommended that 
Petitioner be reinstated to the position he held prior to this termination; that he receive back pay from 
the date of his termination to the date of his reinstatement; that he receive reasonable attorney's fees 
and costs; and that he recehe all other benefits to which he would have become entitled but for this 
Ln\oluntar," separation on .August 5. 1991. 

ORDER 

It is hereby ordered that the agency ser^e a copy of the final decision on the Office of .Adminis- 
trathe Hearings, P.O. Draper 27447, Raleigh. N.C. 27611-^447, in accordance with North CaroUna 
General Statute 150B-36(b). 

NOTICE 



169 7:2 NORTH CAROLINA REGISTER April 15, 1992 



CONTESTED CASE DECISIONS 



TTie agency making the final decision in this contested case is required to give each party an op- 
portunity to file exceptions to this recommended decision and to present written arguments to those in 
the agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the State Personnel Com- 
mission. 



This the 24th day of March, 1992 



Beecher R. Gray 
Administrative Law Judge 



7:2 NORTH CAROLINA REGISTER April 15, 1992 170 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICATION SYSTEM 



Th 



he Xorth Carolina Administrative Code (.\CACj has four major subdivisions of ndes. Two of 
these, titles and chapters, are mandatory. The major subdivision of the XCAC is the title. Each 
major department in the .Xorth Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
nvo, subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DFV ISIONS OF THE NORTH CAROEINA ADMIMSTRATn E CODE 



riTLE 


DEPARTMENT 


LICENSESG BOARDS 


CHAPTER 


1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certified Public Accountant Examiners 


8 




Development 


Chiropractic Examiners 


10 


5 


Correction 


General Contractors 


12 


6 


Council of State 


Cosmetic Art Examiners 


14 


7 


Cultural Resources 


Dental Examiners 


16 


8 


Elections 


Dietetics Nutrition 


17 


9 


Governor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


19 


11 


Insurance 


Foresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


Hearing Aid Dealers and Fitters 


22 


14A 


Crime Control and Public Safety 


Landscape Architects 


26 


15A 


Environment, Health, and Natural 


Landscape Contractors 


28 




Resources 


Martial & Famil}- Therapy 


31 


16 


Public Education 


Medical Examiners 


32 


17 


Revenue 


Midwifen,- Joint Committee 


33 


18 


Secretary of State 


Mortuar,- Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home Administrators 


37 


*21 


Occupational Licensing Boards 


Occupational Therapists 


38 


22 


Administrative Procedures 


Opticians 


40 


23 


Community Colleges 


Optometr\- 


42 


24 


Independent Agencies 


Osteopathic Examination and 


44 


25 


State Personnel 


Registration (Repealed) 




26 


Administrative Llearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating and Fire Sprinkler 


50 






Contractors 








Podiatn,' Examiners 


52 






Practicing Counselors 


53 






Practicmg Psychologists 


54 






Professional Engineers and Land Sur\c>ors 56 






Real Estate Commission 


5S 






Refrigeration Examiners 


60 






Sanitanan Examiners 


62 






Social Work 


e:^ 






Speech and Language Pathologists and 


64 






Audiologists 








Veterinarv' Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational Licensing boards. 



/"/ 



NOR TH CAR OLINA R EG IS TER .April 15, 1 992 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1992 - March 1993) 



1992 - 1993 

Pages Issue 

1 - 105 1 - April 

106 - 173 2 - April 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporar> Rule 



ADMrMSTRATION 

Auxiliary' Services, 4 PR 

ENMRONMEN T, HEALTH, AND NATURAL RESOURCES 

Health: Epidemiology, 140 PR 

Health Ser\ices, 52 PR 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136 PR 

Wildlife Resources Commission, 28 PR, 133 PR 

FINAL DECISION LETTERS 

Voting Rights Act, 106 

HUMAN RESOURCES 

Aging, Division of, 121 PR 

Day Care Rules, 123 PR 

Economic Opportunity, 5 PR 

Facility Services, 1 11 PR 

Medical Assistance, 4 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 1 1 1 PR 

INSURANCE 

Consumer Services Division, 125 PR 
Departmental Rules, 7 PR 
Engineering and Building Codes, 19 PR 
Fire and Rescue Services Division, 17 PR 
Hearings Division, 124 PR 
Life and Health Division, 22 PR 
Property and Casualty Division, 20 PR 



7:2 NORTH CAROLINA REGISTER April 15, 1992 172 



CUMULA TIVE INDEX 



Seniors' Health Insurance Information Program, 132 PR 

JISTICE 

Alarm Systems Licensing Board, 27 PR 

LICENSING BOARDS 

Electrolysis Examiners, Board of, 69 PR 

LIST OF RULES CODIFIED 

List of Rules Codified, 72 

TRANSPORTATION 

Motor Vehicles, Division of, 68 PR, 142 PR 



173 7:2 NORTH CAROLINA REGISTER April 15, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 

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